b'Legality of the Use of Military Commissions to\nTry Terrorists\nThe President possesses inherent authority under the Constitution, as Chief Executive and Commander\nin Chief of the Armed Forces of the United States, to establish military commissions to try and\npunish terrorists captured in connection with the attacks of September 11 or in connection with U.S.\nmilitary operations in response to those attacks.\n\nNovember 6, 2001\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nI. Background ...................................................................................................... 239\nII. Military Commissions May Be Used to Try All Offenses Against the\nLaws of War ................................................................................................... 240\nA. Congress Has Sanctioned the Broad Jurisdiction of Military\nCommissions to Try All Offenses Against the Laws of War................... 241\nB. Even If Congress Had Not Authorized Creation of Military\nCommissions, the President Would Have Authority as Commander\nin Chief to Convene Them....................................................................... 245\nC. The Use of Military Commissions to Inflict Punishments Without the\nProcedures Provided for Criminal Trials Under Article III, Section 2\nand the Fifth and Sixth Amendments Is Constitutionally Permissible .... 249\n1. U.S. Citizens...................................................................................... 254\n2. Enemy Aliens Seized in the United States ........................................ 256\nIII. The President May Conclude That the Laws of Armed Conflict Apply to\nthe Terrorist Attacks ....................................................................................... 260\nA. Determining Whether War Exists Is a Question for the Political\nBranches .................................................................................................. 261\nB. The Terrorist Attacks Have Created a Situation That Can Properly\nBe Considered War.................................................................................. 263\n1. American Precedents......................................................................... 264\n2. International Law Standards.............................................................. 270\nIV. Under the Laws of War, the Terrorists Are Unlawful Combatants\nSubject to Trial and Punishment for Violations of the Laws of War .............. 276\nYou have asked us to consider whether terrorists captured in connection with\nthe attacks of September 11 or in connection with ongoing U.S. operations in\nresponse to those attacks could be subject to trial before a military court. The\nUniform Code of Military Justice (\xe2\x80\x9cUCMJ\xe2\x80\x9d), 10 U.S.C. \xc2\xa7\xc2\xa7 801-946, authorizes\nmilitary commissions to try \xe2\x80\x9coffenders or offenses that by statute or by the law of\nwar may be tried by military commissions.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 821 (2000). The Supreme\nCourt has interpreted identical language (then included in Article 15 of the\n\n238\n\n227-329 VOL_25_PROOF.pdf 248\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nArticles of War in effect during World War II) to incorporate customary practice\nand to authorize trial by military commission 1 of any person subject to the laws of\nwar for any offense under the laws of war. See Ex parte Quirin, 317 U.S. 1, 30\n(1942).\nWe conclude that under 10 U.S.C. \xc2\xa7 821 and his inherent powers as Commander in Chief, the President may establish military commissions to try and punish\nterrorists apprehended as part of the investigation into, or the military and\nintelligence operations in response to, the September 11 attacks. * As we outline in\nPart I, ample precedent establishes that military commissions may be used to try\nand punish (even with death) offenders under the laws of war. The President both\nhas inherent authority as Commander in Chief to convene military commissions\nand has received authorization from Congress for their use to the full extent\npermitted by past executive practice. In Part II, we explain that determining\nwhether the laws of war apply in this context is a political question for the\nPresident to determine in his role as Commander in Chief. In addition, we outline\nfactors that may be considered, based on past precedents, in determining whether\nthe laws of war are applicable in the present conflict with terrorist forces. We\nexplain that a declaration of war is not required to create a state of war or to\nsubject persons to the laws of war, nor is it required that the United States be\nengaged in armed conflict with another nation. The terrorists\xe2\x80\x99 actions in this case\nare sufficient to create a state of war de facto that allows application of the laws of\nwar.\nPart III addresses briefly some representative offenses that might be charged\nunder the laws of war. We will address more thoroughly the charges that could be\nbrought before a military commission and the procedures that would be required\nbefore such a commission in a subsequent memorandum.\nI. Background\nA military commission is a form of military tribunal typically used in three\nscenarios: (i) to try individuals (usually members of enemy forces) for violations\nof the laws of war; (ii) as a general court administering justice in occupied\nterritory; and (iii) as a general court in an area where martial law has been declared\n\n1\nSection 821 refers to four forms of military tribunal: courts-martial, military commissions, provost\ncourts, and \xe2\x80\x9cother military tribunals.\xe2\x80\x9d Id. \xc2\xa7 821. In this memorandum, we address military commissions, because that is the form of tribunal suited to hearing the charges contemplated here.\n* Editor\xe2\x80\x99s Note: After this opinion was issued, the Supreme Court concluded in Hamdan v.\nRumsfeld, 548 U.S. 557, 613 (2006), that military commissions established pursuant to a November 13,\n2001 presidential order were inconsistent with the UCMJ and common Article 3 of the Geneva\nConventions. Following Hamdan, Congress expressly authorized a system of military commissions\npursuant to the Military Commissions Act of 2006, Pub. L. No 109-366, 120 Stat. 2600 (as amended by\nthe Military Commissions Act of 2009, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2574).\n\n239\n\n227-329 VOL_25_PROOF.pdf 249\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nand the civil courts are closed. See generally William Winthrop, Military Law and\nPrecedents 836-40 (2d ed. 1920) (\xe2\x80\x9cWinthrop\xe2\x80\x9d). The commission is convened by\norder of a commanding officer and consists of a board of officers who sit as\nadjudicators without a jury. See id. at 835. The commission\xe2\x80\x99s decision is subject to\nreview by the convening authority and is not subject to direct judicial review.\nMilitary commissions have been used throughout U.S. history to prosecute\nviolators of the laws of war. \xe2\x80\x9cSince our nation\xe2\x80\x99s earliest days, such commissions\nhave been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war. They have been called our common law war\ncourts.\xe2\x80\x9d Madsen v. Kinsella, 343 U.S. 341, 346-47 (1952). Military commissions\nhave tried offenders drawn from the ranks of aliens and citizens alike charged with\nwar crimes arising as early as the Revolutionary War, the Mexican-American War,\nand the Civil War, and as recently as World War II. See Quirin, 317 U.S. at 32\nn.10, 42 n.14. President Lincoln\xe2\x80\x99s assassins and their accomplices were imprisoned and even executed pursuant to convictions rendered by military commissions. Their offenses were characterized not as criminal matters but rather as acts\nof rebellion against the government itself. See Military Commissions, 11 Op. Att\xe2\x80\x99y\nGen. 297 (1865); Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) (No. 9899).\nSuch use of military commissions has been repeatedly endorsed by federal courts,\nincluding as recently as this year. See Mudd v. Caldera, 134 F. Supp. 2d 138\n(D.D.C. 2001).\nMilitary commissions are not courts within Article III of the Constitution, nor\nare they subject to the jury trial requirements of the Fifth and Sixth Amendments\nof the Constitution. See Quirin, 317 U.S. at 40. Unlike Article III courts, the\npowers of military commissions are derived not from statute, but from the laws of\nwar. See Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 249-53 (1863). That is,\ntheir authority derives from the Constitution\xe2\x80\x99s vesting of the power of Commander\nin Chief in the President. \xe2\x80\x9cNeither their procedure nor their jurisdiction has been\nprescribed by statute.\xe2\x80\x9d Madsen, 343 U.S. at 347. Instead, \xe2\x80\x9c[i]t has been adapted in\neach instance to the need that called it forth.\xe2\x80\x9d Id. at 347-48. \xe2\x80\x9cIn general . . .\n[Congress] has left it to the President, and the military commanders representing\nhim, to employ the commission, as occasion may require, for the investigation and\npunishment of violations of the laws of war.\xe2\x80\x9d Id. at 346 n.9 (quoting Winthrop at\n831).\nII. Military Commissions May Be Used to Try All Offenses Against\nthe Laws of War\nThe Uniform Code of Military Justice (\xe2\x80\x9cUCMJ\xe2\x80\x9d) expressly addresses the use of\nmilitary commissions in Article 21. See 10 U.S.C. \xc2\xa7 821. Because that provision\ncontains an explicit congressional authorization for military commissions, we\nbegin by examining in Part II.A the scope of that authorization. We conclude that\n\n240\n\n227-329 VOL_25_PROOF.pdf 250\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nsection 821 is quite broad and, by endorsing the customary uses of military\ncommissions in U.S. military practice, authorizes military commission jurisdiction\nto try all offenses against the laws of war. Next, in part II.B, we explain that even\nif Congress had not sanctioned the use of military commissions to try all offenses\nagainst the laws of war, the President, exercising his authority as Commander in\nChief, could order the creation of military commissions to try such offenses.\nIndeed, military commissions were created under presidential authority before\nthey had any sanction in statutory law. Finally, in Part II.C, we examine constitutional objections that might be raised against the use of military commissions,\nparticularly potential claims that they violate constitutional guarantees for trial by\njury and a grand jury indictment. We conclude, as has the Supreme Court, that\noffenses charged under the laws of war before military commissions are outside\nthe provisions of Article III and the Fifth and Sixth Amendments and thus that the\nrights to grand jury indictment and jury trial do not apply to such offenses.\nA. Congress Has Sanctioned the Broad Jurisdiction of Military\nCommissions to Try All Offenses Against the Laws of War\nThe UCMJ addresses the jurisdiction of military commissions in Article 21,\nwhich is section 821 of title 10 of the United States Code. Section 821 is phrased\nsomewhat unusually, because it does not create military commissions and define\ntheir functions and jurisdiction. Instead, it refers to military commissions primarily\nto acknowledge their existence and to preserve their existing jurisdiction. As\nexplained more fully below, military commissions had been created under the\nauthority of the President as Commander in Chief and used to try offenses against\nthe laws of war before there was any explicit statutory sanction for their use.\nSection 821, which is entitled \xe2\x80\x9cJurisdiction of courts-martial not exclusive,\xe2\x80\x9d thus\nstates that \xe2\x80\x9c[t]he provisions of this chapter conferring jurisdiction upon courtsmartial do not deprive military commissions . . . of concurrent jurisdiction with\nrespect to offenders or offenses that by statute or by the law of war may be tried by\nmilitary commissions.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 821 (emphasis added). The jurisdictional\nprovision for courts-martial that is cross-referenced is 10 U.S.C. \xc2\xa7 818 (2000),\nwhich defines the jurisdiction of general courts-martial to include \xe2\x80\x9cjurisdiction to\ntry any person who by the law of war is subject to trial by a military tribunal.\xe2\x80\x9d By\nits terms, section 821 takes the existence of military commissions as a given and\nclarifies that the establishment of broad jurisdiction in courts-martial will not\ncurtail the powers of military commissions.\nBy expressly preserving the jurisdiction of military commissions, section 821\nnecessarily provides a congressional authorization and sanction for their use.\nIndeed, the Supreme Court has concluded that identical language in the predecessor provision to section 821\xe2\x80\x94Article 15 of the Articles of War\xe2\x80\x94\xe2\x80\x9cauthorized trial\nof offenses against the laws of war before such commissions.\xe2\x80\x9d Quirin, 317 U.S. at\n\n241\n\n227-329 VOL_25_PROOF.pdf 251\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\n29 (emphasis added). See also id. at 28 (\xe2\x80\x9cBy the Articles of War, and especially\nArticle 15, Congress has explicitly provided, so far as it may constitutionally do\nso, that military tribunals shall have jurisdiction to try offenders or offenses\nagainst the law of war . . . .\xe2\x80\x9d).\nThe fact that section 821 acknowledges and endorses the jurisdiction of an\nexisting tribunal is important for properly understanding the scope of the authorization it contains. By its terms, the provision incorporates by reference the role of\nmilitary commissions under the customary \xe2\x80\x9claw of war.\xe2\x80\x9d Thus, the section states\nthat military commissions have jurisdiction over all \xe2\x80\x9coffenders or offenses that by\nstatute or by the law of war may be tried by military commissions.\xe2\x80\x9d The apparent\ncircularity of the language is explained by the fact that the section is endorsing the\nexisting use of military commissions under military practice.\nThe history of the provision also makes it abundantly clear that its purpose was\nto express congressional approval for the traditional use of military commissions\nunder past practice. When the language now codified in section 821 was first\nincluded in the Articles of War in 1916, it was explicitly intended to acknowledge\nand sanction the pre-existing jurisdiction of military commissions. The language\nwas introduced as Article 15 of the Articles of War at the same time that the\njurisdiction of general courts-martial was expanded to include all offenses against\nthe laws of war. The new Article 15 stated (like current section 821) that the\n\xe2\x80\x9cprovisions of these articles conferring jurisdiction upon courts-martial shall not\nbe construed as depriving military commissions . . . of concurrent jurisdiction in\nrespect of offenders or offenses that by the law of war may be lawfully triable by\nsuch military commissions.\xe2\x80\x9d Act of August 29, 1916, 39 Stat. 619, 653. Judge\nAdvocate General of the Army Crowder, the proponent of the new article,\nexplained in testimony before the Senate that the military commission \xe2\x80\x9cis our\ncommon-law war court,\xe2\x80\x9d and that \xe2\x80\x9c[i]t has no statutory existence.\xe2\x80\x9d S. Rep. No. 64130, at 40 (1916). The new Article 15 thus was not establishing military commissions and defining their jurisdiction. Rather, as General Crowder explained, it was\nrecognizing their existence and preserving their authority: \xe2\x80\x9cIt just saves to these\nwar courts the jurisdiction they now have and makes it concurrent with courtsmartial . . . .\xe2\x80\x9d Id.; see also S. Rep. No. 63-229, at 53 (1914) (testimony of Judge\nAdvocate General Crowder before the House Committee on Military Affairs)\n(noting that the military commission \xe2\x80\x9chas not been formally authorized by statute\xe2\x80\x9d\nand explaining that the new Article 15 was designed to make clear that, through\nthe expansion of the jurisdiction of courts-martial, the military commissions\xe2\x80\x99\n\xe2\x80\x9ccommon law of war jurisdiction was not ousted\xe2\x80\x9d).\nIn explaining the history of the provision now codified in section 821, the\nSupreme Court has described the testimony of Judge Advocate General Crowder\nas \xe2\x80\x9cauthoritative.\xe2\x80\x9d Madsen, 343 U.S. at 353. The Court thus determined that the\neffect of this language was to preserve for such commissions \xe2\x80\x9cthe existing\njurisdiction which they had over such offenders and offenses\xe2\x80\x9d under the laws of\n\n242\n\n227-329 VOL_25_PROOF.pdf 252\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nwar. Id. at 352 (emphasis added). As the Court noted, because the statute simply\nrecognized the existence of military commissions, \xe2\x80\x9c[n]either their procedure nor\ntheir jurisdiction has been prescribed by statute.\xe2\x80\x9d Id. at 347. As explained below,\nthe fact that military commissions were used long before any reference to them\nappeared in the Articles of War demonstrates that the President has authority as\nCommander in Chief to create them without authorization (and free from any\nrestriction) of Congress.\nGiven the text and history of section 821, the provision must be read as preserving the broadest possible sweep for the traditional jurisdiction exercised by\nmilitary commissions before they were expressly mentioned in statutory law. The\nstatute, in other words, simply endorses and incorporates by reference Executive\nBranch practice. The Supreme Court has adopted precisely this understanding of\nthe section and has thus explained that \xe2\x80\x9c[b]y . . . recognizing military commissions\nin order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles [of War], Congress gave sanction . . . to any use of the\nmilitary commission contemplated by the common law of war.\xe2\x80\x9d In re Yamashita,\n327 U.S. 1, 20 (1946) (emphasis added); see also id. at 7 (stating that Congress\n\xe2\x80\x9crecognized the \xe2\x80\x98military commission\xe2\x80\x99 appointed by military command, as it had\npreviously existed in United States Army Practice, as an appropriate tribunal for\nthe trial and punishment of offenses against the law of war\xe2\x80\x9d). Similarly, the Court\nhas explained that \xe2\x80\x9cCongress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of\nwar.\xe2\x80\x9d Quirin, 317 U.S. at 30 (emphasis added); see also id. at 35 (relying on the\n\xe2\x80\x9clong course of practical administrative construction by [the] military authorities\xe2\x80\x9d). 2 Congress did not \xe2\x80\x9cattempt[] to codify the law of war or to mark its precise\nboundaries.\xe2\x80\x9d Yamashita, 327 U.S. at 7. Instead, it simply adopted by reference\n\xe2\x80\x9cthe system of military common law.\xe2\x80\x9d Id. at 8.\nIndeed, if section 821 were read as restricting the use of military commissions\nand prohibiting practices traditionally followed, it would infringe on the President\xe2\x80\x99s express constitutional powers as Commander in Chief. Cf. Quirin, 317 U.S.\nat 47 (declining to \xe2\x80\x9cinquire whether Congress may restrict the power of the\nCommander in Chief to deal with enemy belligerents\xe2\x80\x9d by restricting use of\nmilitary commissions); id. (declining also to \xe2\x80\x9cconsider the question whether the\nPresident is compelled by the Articles of War to afford unlawful enemy belligerents a trial before subjecting them to disciplinary measures\xe2\x80\x9d). A clear statement of\ncongressional intent would be required before a statute could be read to effect such\nan infringement on core executive powers. See, e.g., Public Citizen v. U.S. Dep\xe2\x80\x99t\nof Justice, 491 U.S. 440, 466 (1989).\n\n2\nThe use of military commissions for members of the U.S. armed forces may be restricted by\nseparate provisions in the UCMJ, and we do not address that issue here.\n\n243\n\n227-329 VOL_25_PROOF.pdf 253\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nThe congressional sanction for the use of military commissions is a permissible\nexercise of Congress\xe2\x80\x99s powers under the Constitution. Congress has authority not\nonly to \xe2\x80\x9cdeclare War,\xe2\x80\x9d but also to \xe2\x80\x9craise and support Armies,\xe2\x80\x9d and \xe2\x80\x9cmake Rules\nfor the Government and Regulation of the land and naval Forces.\xe2\x80\x9d U.S. Const.\nart. I, \xc2\xa7 8, cls. 11, 12, 14. To the extent military commissions are used for enforcing discipline within the armed forces of the United States, Congress has authority\nto sanction their use. In addition, Congress has authority to \xe2\x80\x9cdefine and punish . . .\nOffences against the Law of Nations.\xe2\x80\x9d Id. art. I, \xc2\xa7 8, cl. 10. Authorizing the use of\nmilitary commissions to enforce the laws of war\xe2\x80\x94which are considered a part of\nthe \xe2\x80\x9cLaw of Nations\xe2\x80\x9d\xe2\x80\x94is certainly a permissible exercise of these authorities. See,\ne.g., Yamashita, 327 U.S. at 7 (explaining that congressional sanction for military\ncommissions was an \xe2\x80\x9cexercise of the power conferred upon it by Article I, \xc2\xa7 8,\ncl. 10 of the Constitution to \xe2\x80\x98define and punish . . . Offenses against the Law of\nNations . . .\xe2\x80\x99 of which the law of war is a part\xe2\x80\x9d) (alteration in original); id. at 16\n(\xe2\x80\x9cCongress in the exercise of its constitutional power to define and punish offenses\nagainst the law of nations, of which the law of war is a part, has recognized the\n\xe2\x80\x98military commission\xe2\x80\x99 appointed by military command, as it had previously\nexisted in United States army practice, as an appropriate tribunal for the trial and\npunishment of offenses against the law of war.\xe2\x80\x9d). 3 Or, to be more precise, it is\npermissible at least so long as any congressional regulations do not interfere with\nthe President\xe2\x80\x99s authority as Commander in Chief. Cf. Quirin, 317 U.S. at 47\n(declining to address \xe2\x80\x9cwhether Congress may restrict the power of the Commander\nin Chief to deal with enemy belligerents\xe2\x80\x9d through regulations on military commissions); cf. also Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (stating that\nthe \xe2\x80\x9cPresident alone\xe2\x80\x9d is \xe2\x80\x9cconstitutionally invested with the entire charge of hostile\noperations\xe2\x80\x9d). Given that section 821 simply gives sanction to the existing practice\nof the Executive in making use of military commissions, it does not on its face\nplace any such restriction on the use of commissions.\n\n3\nSee also Quirin, 317 U.S. at 28 (\xe2\x80\x9cCongress, in addition to making rules for the government of our\nArmed Forces, has thus exercised its authority to define and punish offenses against the law of nations\nby sanctioning . . . the jurisdiction of military commissions to try persons for offenses which, according\nto the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by\nsuch tribunals.\xe2\x80\x9d); cf. Madsen, 343 U.S. at 346 n.9 (\xe2\x80\x9c[I]t is those provisions of the Constitution which\nempower Congress to \xe2\x80\x98declare war\xe2\x80\x99 and \xe2\x80\x98raise armies,\xe2\x80\x99 and which, in authorizing the initiation of war,\nauthorize the employment of all necessary and proper agencies for its due prosecution, from which this\ntribunal derives its original sanction. . . . The commission is simply an instrumentality for the more\nefficient execution of the war powers vested in Congress and the power vested in the President as\nCommander-in-chief in war.\xe2\x80\x9d) (quoting Winthrop at 831).\n\n244\n\n227-329 VOL_25_PROOF.pdf 254\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nB. Even If Congress Had Not Authorized Creation of Military\nCommissions, the President Would Have Authority as Commander\nin Chief to Convene Them\nThe congressional authorization for military commissions in 10 U.S.C. \xc2\xa7 821\nendorses sufficiently broad jurisdiction for the commissions that there will likely\nbe no need to rely solely on the President\xe2\x80\x99s inherent authority as Commander in\nChief to convene commissions in the present circumstances. As noted above,\nCongress has endorsed the pre-existing practice of permitting military commissions to try \xe2\x80\x9call offenses which are defined as such by the law of war.\xe2\x80\x9d Quirin, 317\nU.S. at 30. It is important, nevertheless, to note that the President has inherent\nauthority as Commander in Chief to convene such tribunals even without authorization from Congress.\nThe Commander in Chief Clause, U.S. Const. art. II, \xc2\xa7 2, cl. 1, vests in the\nPresident the full powers necessary to prosecute successfully a military campaign.\nIt has long been understood that the Constitution provides the federal government\nall powers necessary for the execution of the duties the Constitution describes. As\nthe Supreme Court explained in Johnson v. Eisentrager, \xe2\x80\x9c[t]he first of the\nenumerated powers of the President is that he shall be Commander-in-Chief of the\nArmy and Navy of the United States. And, of course, grant of war power includes\nall that is necessary and proper for carrying these powers into execution.\xe2\x80\x9d 339 U.S.\n763, 788 (1950) (citation omitted); see also Lichter v. United States, 334 U.S. 742,\n780 (1948) (\xe2\x80\x9cThe powers of Congress and the President are only those which are\nto be derived from the Constitution but . . . the primary implication of a war power\nis that it shall be an effective power to wage the war successfully.\xe2\x80\x9d); Home\nBuilding & Loan Ass\xe2\x80\x99n v. Blaisdell, 290 U.S. 398, 426 (1934) (stating that \xe2\x80\x9cthe\nwar power of the federal government\xe2\x80\x9d is \xe2\x80\x9ca power to wage war successfully\xe2\x80\x9d).\nOne of the necessary incidents of authority over the conduct of military operations\nin war is the power to punish enemy belligerents for violations of the laws of war.\nThe laws of war exist in part to ensure that the brutality inherent in war is confined\nwithin some limits. It is essential for the conduct of a war, therefore, that an army\nhave the ability to enforce the laws of war by punishing transgressions by the\nenemy. 4\nIt was well recognized at the time of the Founding, moreover, that one of the\npowers inherent in military command was the authority to institute tribunals for\npunishing violations of the laws of war by the enemy. In 1780, during the\nRevolutionary War, General Washington as Commander in Chief of the Continen-\n\n4\nCf. Request of the Senate for an Opinion as to the Powers of the President \xe2\x80\x9cIn Emergency or State\nof War,\xe2\x80\x9d 39 Op. Att\xe2\x80\x99y Gen. 343, 347-48 (1939) (\xe2\x80\x9cIt is universally recognized that the constitutional\nduties of the Executive carry with them the constitutional powers necessary for their proper performance.\xe2\x80\x9d).\n\n245\n\n227-329 VOL_25_PROOF.pdf 255\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\ntal Army appointed a \xe2\x80\x9cBoard of General Officers\xe2\x80\x9d to try the British Major Andr\xc3\xa9\nas a spy. See Quirin, 317 U.S. at 31 n.9; Proceedings of a Board of General\nOfficers, Held by Order of His Excellency Gen. Washington, Commander in Chief\nof the Army of the United States of America, Respecting Major John Andr\xc3\xa9,\nAdjutant General of the British Army, September 29, 1780 (Philadelphia, Francis\nBailey 1780), as reprinted in Proceedings of a Board of General Officers Respecting Major John Andr\xc3\xa9 (New York 1867), available at http://archive.org/details/\nproceedingsofboa00andr (last visited May 22, 2012). At the time, there was no\nprovision in the American Articles of War providing for jurisdiction in a courtmartial to try an enemy for the offense of spying. See George B. Davis, A Treatise\non the Military Law of the United States 308 n.1 (1913) (\xe2\x80\x9cDavis\xe2\x80\x9d) (explaining that\nthe tribunal used to try Andr\xc3\xa9 cannot properly be considered a court-martial,\nbecause under the then-existing Articles of War, courts-martial could not try\nmembers of the enemy forces for the offense of spying); Winthrop at 961 (reprinting American Articles of War of 1776). The term \xe2\x80\x9cCommander in Chief\xe2\x80\x9d was\nunderstood in Anglo-American constitutional thought as incorporating the fullest\npossible range of power available to a military commander. See John Yoo, The\nContinuation of Politics by Other Means: The Original Understanding of War\nPowers, 84 Calif. L. Rev. 167, 252-54 (1996). In investing the President with full\nauthority as Commander in Chief, the drafters of the Constitution surely intended\nto give the President the same authority that General Washington possessed during\nthe Revolutionary War to convene military tribunals to punish offenses against the\nlaws of war.\nThe history of military commissions bears out this conclusion, because as a\nmatter of practice military commissions have been created under the President\xe2\x80\x99s\ninherent authority as Commander in Chief without any authorization from\nCongress. In April, 1818, for example, General Andrew Jackson convened\nmilitary tribunals to try two English subjects, Arbuthnot and Ambrister, for\ninciting the Creek Indians to war with the United States. See Winthrop at 464, 832.\nThe subjects were convicted and executed accordingly. Id. As one author explained, General Jackson \xe2\x80\x9cdid not find his authority to convene [these tribunals] in\nthe statutory law, but in the laws of war.\xe2\x80\x9d William E. Birkhimer, Military Government and Martial Law 353 (3d ed. 1914) (\xe2\x80\x9cBirkhimer\xe2\x80\x9d). Similarly, in the\nMexican American War in 1847, General Winfield Scott appointed tribunals\ncalled \xe2\x80\x9ccouncil[s] of war\xe2\x80\x9d to try offenses under the laws of war and tribunals\ncalled \xe2\x80\x9cmilitary commission[s]\xe2\x80\x9d to serve essentially as occupation courts administering justice for occupied territory. See, e.g., Winthrop at 832-33; Davis at 308.\nThere was no statutory authorization for these tribunals, and they were thus\ninstituted by military command (necessarily under authority derived from the\n\n246\n\n227-329 VOL_25_PROOF.pdf 256\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nPresident\xe2\x80\x99s authority as Commander in Chief) without sanction from Congress. 5 In\nlater practice, both functions (that is, the role of war courts and courts of occupation) were performed by tribunals known as \xe2\x80\x9cmilitary commission[s].\xe2\x80\x9d Thus, after\nthe outbreak of the Civil War, military commissions were convened to try offenses\nagainst the laws of war, see Davis at 308 n.2, and under the general orders drafted\nfor the governance of the Army in 1862, commanders were authorized to convene\nmilitary commissions to try offenses against the laws of war, see Winthrop at 833.\nIt was not until 1863 that military commissions were even mentioned in a statute\nenacted by Congress. In that year, Congress authorized the use of military\ncommissions to try members of the military for certain offenses committed during\ntime of war. See Act of Mar. 3, 1863, \xc2\xa7 30, 12 Stat. 731, 736. The statute,\nmoreover, did not purport to create military commissions. Rather, it acknowledged\nthat they could be used as alternatives to courts-martial in some cases.\nAs explained above, the current provision in section 821 of the UCMJ also does\nnot create military commissions or define exhaustively their authority. Instead, its\nhistory shows that it was adopted to preserve the jurisdiction of what was recognized as a pre-existing tribunal. Precisely because it confirms that military\ncommissions existed before any express congressional authorization, the history of\nsection 821 also supports the conclusion that the President has constitutional\nauthority to convene commissions even without legislation authorizing them.\nSubsequent discussions of the use of military commissions by the Supreme\nCourt reflect the same understanding that the use of military tribunals is a\nnecessary part of the tools of a commander conducting a military campaign. For\nexample, as the Court explained in Yamashita, \xe2\x80\x9c[a]n important incident to the\nconduct of war is the adoption of measures by the military commander, not only to\nrepel and defeat the enemy, but to seize and subject to disciplinary measures those\nenemies who, in their attempt to thwart or impede our military effort, have\nviolated the law of war.\xe2\x80\x9d 327 U.S. at 11. Although the Court was addressing a\nsituation in which Congress had recognized this power in the commander of armed\nforces, the logic of the Court\xe2\x80\x99s explanation suggests that the power to convene\nmilitary commissions is an inherent part of the authority the Constitution confers\nupon the President by naming him Commander in Chief of the armed forces. 6\n\n5\nSee Davis at 308 (explaining that military commissions \xe2\x80\x9care simply criminal war-courts, resorted\nto for the reason that the jurisdiction of courts-martial, created as they are by statute, is restricted by\nlaw, and cannot be extended to include certain classes of offenses, which in war would go unpunished\nin the absence of a provisional forum for the trial of the offenders\xe2\x80\x9d).\n6\nSee also Winthrop at 57 ([T]he \xe2\x80\x9cPresident is invested with a general and discretionary power to\norder statutory courts-martial for the army, by virtue of his constitutional capacity as Commander-inchief, independently of any article of war or other legislation of Congress.\xe2\x80\x9d); id. at 835 (\xe2\x80\x9cThe\nPresident, as Commander-in-chief, may of course assemble military commissions as he may assemble\ncourts-martial.\xe2\x80\x9d); Birkhimer at 357 (\xe2\x80\x9cMilitary commissions may be appointed either under provisions\nof law in certain instances, or under that clause of the Constitution vesting the power of commander-in-\n\n247\n\n227-329 VOL_25_PROOF.pdf 257\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nSimilarly, the same conclusion is buttressed by the reasoning Justice Douglas\nadvanced in support of the President\xe2\x80\x99s authority to establish the international war\ncrimes tribunals after World War II without any authorization from Congress. As\nJustice Douglas explained:\nThe Constitution makes the President the \xe2\x80\x9cCommander in Chief of\nthe Army and Navy of the United States . . . .\xe2\x80\x9d Art. II, \xc2\xa7 2, Cl. 1. His\npower as such is vastly greater than that of troop commander. He not\nonly has full power to repel and defeat the enemy; he has the power\nto occupy the conquered country, and to punish those enemies who\nviolated the law of war.\nHirota v. MacArthur, 338 U.S. 197, 207-08 (1948) (Douglas, J., concurring)\n(alteration in original, citations omitted); see also id. at 215 (\xe2\x80\x9c[T]he capture and\ncontrol of those who were responsible for the Pearl Harbor incident was a political\nquestion on which the President as Commander-in-Chief, and as spokesman for\nthe nation in foreign affairs, had the final say.\xe2\x80\x9d). As the Supreme Court recognized\nin Hirota, the President\xe2\x80\x99s power as Commander in Chief extended to the novel\ncreation of new, multinational tribunals to try the enemy for war crimes. Given\nthat broad authority, the President\xe2\x80\x99s power surely extends to the appointment of\nmilitary commissions consisting solely of American officials.\nAn opinion of the Attorney General issued at the end of the Civil War supports\nthe same conclusion. In 1865, Attorney General Speed addressed the use of\nmilitary commissions to try those accused in the plot to assassinate President\nLincoln and explained that even if Congress had not provided for the creation of\nmilitary commissions, they could be instituted by military commanders as an\ninherent incident of their authority to wage the military campaign:\n[M]ilitary tribunals exist under and according to the laws and usages\nof war in the interest of justice and mercy. They are established to\nsave human life, and to prevent cruelty as far as possible. The commander of an army in time of war has the same power to organize\nmilitary tribunals and execute their judgments that he has to set his\nsquadrons in the field and fight battles. His authority in each case is\nfrom the law and usage of war.\nMilitary Commissions, 11 Op. Att\xe2\x80\x99y Gen. at 305. The Attorney General thus\nconcluded that \xe2\x80\x9cin default of Congress defining . . . the mode of proceeding to\nascertain whether an offense [against laws of war] has been committed,\xe2\x80\x9d the\n\nchief in the President, who may exercise it either directly or through subordinate commanders.\xe2\x80\x9d)\n(footnote omitted).\n\n248\n\n227-329 VOL_25_PROOF.pdf 258\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\ncommander of the armed forces could institute tribunals to undertake the task. Id.\nat 310.\nThe Supreme Court has never squarely addressed the question whether the\nPresident may convene military commissions wholly without congressional\nauthorization. In Quirin, the Court expressly declined to decide \xe2\x80\x9cto what extent the\nPresident as Commander in Chief has constitutional power to create military\ncommissions without the support of Congressional legislation.\xe2\x80\x9d 317 U.S. at 29.\nAnd in later cases the Court has remained uncommitted. Thus, in Madsen, for\nexample, the Court stated that \xe2\x80\x9c[i]n the absence of attempts by Congress to limit\nthe President\xe2\x80\x99s power, it appears that, as Commander-in-Chief of the Army and\nNavy of the United States, he may, in time of war, establish and prescribe the\njurisdiction and procedure of military commissions.\xe2\x80\x9d Madsen, 343 U.S. at 348. At\nthe same time, however, the Court cautioned that the \xe2\x80\x9cpolicy of Congress to\nrefrain from legislating in this uncharted area does not imply its lack of power to\nlegislate.\xe2\x80\x9d Id. at 348-49.\nFor the reasons outlined above, we conclude that the best understanding of the\nConstitution is that the President does have the power, as Commander in Chief, to\ncreate military commissions to try enemy belligerents for offenses against the laws\nof war even in the absence of the congressional sanction for their use in section\n821.\nC. The Use of Military Commissions to Inflict Punishments\nWithout the Procedures Provided for Criminal Trials Under\nArticle III, Section 2 and the Fifth and Sixth Amendments Is\nConstitutionally Permissible\nThe most likely constitutional issue to be raised concerning military commissions would be an objection to the denial of the rights to trial by jury in criminal\ncases and grand jury indictment as provided in Article III, Section 2 and the Fifth\nand Sixth Amendments. 7 Such objections would most likely be raised with respect\nto military commissions convened within the territorial United States, and we\naddress them in that context. We believe that if a particular use of military\ncommissions to try offenses against the laws of war is constitutionally permissible\nwithin the United States, it follows a fortiori that such a use is permissible to deal\nwith enemy belligerents overseas, where many constitutional protections would\nnot apply in any event.\n7\nArticle III, Section 2 provides: \xe2\x80\x9cThe Trial of all Crimes, except in Cases of Impeachment; shall be\nby Jury . . . .\xe2\x80\x9d The Fifth Amendment provides: \xe2\x80\x9cNo person shall be held to answer for a capital, or\notherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases\narising in the land or naval forces . . . .\xe2\x80\x9d The Sixth Amendment provides: \xe2\x80\x9cIn all criminal prosecutions,\nthe accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and\ndistrict wherein the crime shall have been committed . . . .\xe2\x80\x9d\n\n249\n\n227-329 VOL_25_PROOF.pdf 259\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nIt has long been settled that the guarantees to trial by jury in criminal cases\ncontained in the Constitution were not intended to expand the rights to these\nprocedures beyond those that existed at common law. See, e.g., Callan v. Wilson,\n127 U.S. 540, 549 (1888). As Justice Story explained in his Commentaries, in\nthese provisions, the Constitution \xe2\x80\x9cdoes but follow out the established course of\nthe common law in all trials for crimes,\xe2\x80\x9d Joseph Story, 2 Commentaries on the\nConstitution of the United States \xc2\xa7 1791 (1833), and thus the provisions in Article\nIII and the Sixth Amendment are \xe2\x80\x9cto be taken as a declaration of what those rules\nwere.\xe2\x80\x9d Callan, 127 U.S. at 549. To the extent that certain offenses, even if\ntechnically deemed \xe2\x80\x9ccriminal,\xe2\x80\x9d could be tried without indictment and without a\njury at common law, the Supreme Court has consistently held that they may be\ntried without a jury under the Constitution. Thus, petty offenses triable at common\nlaw without a jury may be tried without a jury under the Constitution, see Schick v.\nUnited States, 195 U.S. 65, 68-70 (1904), as can criminal contempts, see, e.g., In\nre Terry, 128 U.S. 289, 303 (1888). See also Lewis v. United States, 518 U.S. 322,\n325 (1996) (\xe2\x80\x9cIt is well established that the Sixth Amendment, like the common\nlaw, reserves this jury trial right for prosecutions of serious offenses, and that\n\xe2\x80\x98there is a category of petty crimes or offenses which is not subject to the Sixth\nAmendment jury trial provision.\xe2\x80\x99\xe2\x80\x9d) (quoting Duncan v. Louisiana, 391 U.S. 145,\n159 (1968)). The Fifth Amendment right to grand jury indictment similarly arises\nout of the common law. See Smith v. United States, 360 U.S. 1, 9 (1959) (\xe2\x80\x9cThe use\nof indictments in all cases warranting serious punishment was the rule at common\nlaw\xe2\x80\x9d and \xe2\x80\x9c[t]he Fifth Amendment made the rule mandatory\xe2\x80\x9d) (citations omitted);\nEx parte Wilson, 114 U.S. 417, 423 (1885) (\xe2\x80\x9cThe fifth amendment, declaring in\nwhat cases a grand jury should be necessary, . . . in effect, affirm[ed] the rule of\nthe common law upon the same subject\xe2\x80\x9d).\nAt the time of the Founding, it was well settled that offenses under the laws of\nwar were a distinct category of offense, unlike criminal offenses against the civil\nlaw, and were subject to trial in military tribunals without the benefits of the\nprocedures of the common law enshrined in the Constitution. The Articles of War\nof 1776, for example, made it clear that courts-martial could be convened to try\noffenders under the Articles without a jury or grand jury. See Winthrop at 967\n(reproducing Articles). Similarly, as noted above, a \xe2\x80\x9cBoard of General Officers\xe2\x80\x9d\nwas used in 1780 to try the British Major Andr\xc3\xa9 on the offense of spying. See\nQuirin, 317 U.S. at 31 n.9. Indeed, throughout the Revolutionary War, military\ntribunals were used to try offenders without a jury. See id. at 42 n.14. The text of\nthe Constitution itself makes the distinct nature of military tribunals clear, as the\nFifth Amendment expressly excludes \xe2\x80\x9ccases arising in the land or naval forces\xe2\x80\x9d\nfrom the guarantee of a grand jury indictment. U.S. Const. amend. V. Cf.\nMiddendorf v. Henry, 425 U.S. 25, 49-50 (1976) (Powell, J., concurring) (\xe2\x80\x9cCourtmartial proceedings, as a primary means for the regulation and discipline of the\nArmed Forces, were well known to the Founding Fathers. The procedures in such\n\n250\n\n227-329 VOL_25_PROOF.pdf 260\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\ncourts were never deemed analogous to, or required to conform with, procedures\nin civilian courts.\xe2\x80\x9d). Precisely because military discipline was viewed as wholly\napart from the ordinary criminal law and the provisions in the Constitution relating\nto it, the Supreme Court has long recognized that military commissions do not\nexercise judicial power under Article III and are not subject to judicial review. See,\ne.g., Vallandigham, 68 U.S. 243. Thus, under the settled understanding that the\nrights to jury trial and grand jury indictment do not extend beyond the cases where\nthey were available at common law, those rights simply do not extend to trials\nbefore military tribunals for offenses against the laws of war. Such trials never\nincluded indictment or jury trial at the time of the Founding.\nThe Supreme Court endorsed precisely this reasoning to reject constitutional\nchallenges to the use of military commissions to try and execute violators of the\nlaws of war during and after World War II. In Quirin, for example, eight German\nsaboteurs were apprehended in the United States by the FBI, turned over to the\nmilitary, tried by military commission, and sentenced to death. See 317 U.S.\nat 18-24. In addressing a petition for habeas corpus, the Supreme Court addressed\nprecisely the question at issue\xe2\x80\x94\xe2\x80\x9cwhether it is within the constitutional power of\nthe National Government to place [these defendants] upon trial before a military\ncommission\xe2\x80\x9d\xe2\x80\x94without the protections of Article III and the Fifth and Sixth\nAmendments. Id. at 29.\nThe Court concluded that there was no constitutional barrier to use of the military commission. As the Court explained, the guarantees in Article III and the\nFifth and Sixth Amendments must be understood in light of the common law at the\ntime of the Founding. Military tribunals, the Court noted, \xe2\x80\x9care not courts in the\nsense of the Judiciary Article,\xe2\x80\x9d and juries had never been part of their procedures.\nId. at 39. In particular, the Court pointed to a statute of 1806 concerning trials for\nspies as reflective of the contemporary understanding of the constitutional\nguarantees. That statute imposed the death penalty on alien spies \xe2\x80\x9caccording to the\nlaw and usage of nations, by sentence of a general court martial.\xe2\x80\x9d Act of Apr. 10,\n1806, ch. 20, \xc2\xa7 2, 2 Stat. 359, 371. As the Court explained, this \xe2\x80\x9cenactment must\nbe regarded as a contemporary construction of both Article III, Section 2, and the\nAmendments as not foreclosing trial by military tribunals, without a jury, of\noffenses against the laws of war committed by enemies not in or associated with\nour Armed Forces.\xe2\x80\x9d 317 U.S. at 41. Thus, the Court concluded that offenses\ncognizable under the laws of war in military tribunals at the time of the Founding\ncould continue to be tried before such tribunals under the Constitution: \xe2\x80\x9cIn the\nlight of this long-continued and consistent interpretation we must conclude that \xc2\xa7 2\nof Article III and the Fifth and Sixth Amendments cannot be taken to have\nextended the right to demand a jury to trials by military commission, or to have\nrequired that offenses against the laws of war not triable by jury at common law be\ntried only in the civil courts.\xe2\x80\x9d Id. at 40.\n\n251\n\n227-329 VOL_25_PROOF.pdf 261\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nThe Court reaffirmed that conclusion in subsequent cases. See Yamashita, 327\nU.S. 1 (trial by U.S. military commission of Japanese military governor of the\nPhillippines for various war crimes committed under his command); Johnson v.\nEisentrager, 339 U.S. 763, 787-90 (1950) (trial of German officers in China by\nU.S. military commission for aiding Japanese after Germany\xe2\x80\x99s surrender); id. at\n786 (\xe2\x80\x9cThe jurisdiction of military authorities, during or following hostilities, to\npunish those guilty of offenses against the laws of war is long established.\xe2\x80\x9d); cf.\nDuncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946) (referring to the \xe2\x80\x9cwellestablished power of the military to exercise jurisdiction over . . . enemy belligerents, prisoners of war, or others charged with violating the laws of war\xe2\x80\x9d). 8\nAs the Quirin and Yamashita Courts explained, their decisions rested upon\nlong-established practice throughout the history of the United States\xe2\x80\x94extending\nback to the Founding and before\xe2\x80\x94demonstrating that any enemy belligerent\ncharged with a violation of the laws of war may be tried by military tribunal. The\nCourt traced the history of military commissions explained above and noted,\namong others, the use of boards functionally equivalent to military commissions in\nthe Revolutionary War, see Quirin, 317 U.S. at 31 n.9, the Mexican-American\nWar, see id. at 32 n.10, and during and after the Civil War, id. Military commissions, in fact, were used to try those charged with the assassination of President\nLincoln. See Military Commissions, 11 Op. Att\xe2\x80\x99y Gen. 297; Mudd, 17 F. Cas. 954.\nThe primary support for constitutional arguments to restrict the use of military\ncommissions would be based on the Supreme Court\xe2\x80\x99s decision in Ex parte\nMilligan, 71 U.S. (4 Wall.) 2 (1866). There, the Court held that a military\ncommission could not be used to try a U.S. citizen in the United States for alleged\nviolations of the laws of war, except in areas where martial law has been proclaimed and the civil courts are closed. See id. at 121-22. In Milligan, a U.S.\ncitizen resident in Indiana was arrested by the military, charged with providing aid\nand comfort to the Confederacy, tried by military commission, and sentenced to\ndeath. See id. at 107-08. In addressing a petition for a writ of habeas corpus, the\nCourt rejected the suggestion that the President had full authority to use military\ncommissions to the extent permitted by the \xe2\x80\x9c\xe2\x80\x98laws and usages of war.\xe2\x80\x99\xe2\x80\x9d Id. at 121.\nThe Court refused even to inquire into what those usages might be, because \xe2\x80\x9cthey\ncan never be applied to citizens in states which have upheld the authority of the\ngovernment, and where the courts are open and their process unobstructed.\xe2\x80\x9d Id.;\nsee also id. at 123 (noting that persons in military service are subject to military\ntribunals, but \xe2\x80\x9c[a]ll other persons, citizens of states where the courts are open . . .\nare guaranteed the inestimable privilege of trial by jury\xe2\x80\x9d); id. at 121-22 (\xe2\x80\x9c[N]o\n8\nAfter World War II, entirely apart from the trials before the International Military Tribunal at\nNuremberg, U.S. military commissions in Germany tried 177 Nazi officials and sentenced 12 to death.\nSee Spencer J. Crona & Neal A. Richardson, Justice for War Criminals of Invisible Armies: A New\nLegal and Military Approach to Terrorism, 21 Okla. City U. L. Rev. 349, 381 (1996) (\xe2\x80\x9cCrona &\nRichardson\xe2\x80\x9d).\n\n252\n\n227-329 VOL_25_PROOF.pdf 262\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nusage of war could sanction a military trial there [in Indiana, where courts were\nalways open] for any offence whatever of a citizen in civil life, in nowise connected with the military service.\xe2\x80\x9d). In the Court\xe2\x80\x99s view, the constitutional guarantees to\ntrial by jury and indictment by grand jury in a capital case could not be denied by\nresort to a military commission. The Court held open the possibility that military\ncommissions could be used to try citizens if martial law had properly been\ndeclared in the area, which could happen in times of invasion when the area in\nquestion was actually in the theater of military operations. As the Court put it, the\n\xe2\x80\x9cnecessity must be actual and present; the invasion real, such as effectually closes\nthe courts and deposes the civil administration.\xe2\x80\x9d Id. at 127.\nWe believe that the broad pronouncements in Milligan do not accurately reflect\nthe requirements of the Constitution and that the case has properly been severely\nlimited by the later decision in Quirin. As explained above, the Quirin Court set\nout a clear constitutional analysis under which it concluded that offenses triable by\nmilitary commission under the laws of war were not within the commands of\nconstitutional provisions guaranteeing certain procedures for criminal trials. As a\nresult, the Court placed little or no significance on most of the factors cited in\nMilligan. The Court gave no weight to the fact that the civil courts were open\nwhere the German saboteurs had been captured. 317 U.S. at 23-24, 45. In addition,\nit rejected the idea that military jurisdiction would attach only if the defendants\nhad entered the \xe2\x80\x9ctheatre or zone of active military operations,\xe2\x80\x9d id. at 38, and even\ndeclined to resolve arguments about whether one of the German saboteurs was a\ncitizen (he claimed he had been a naturalized citizen, and therefore invoked\nMilligan) because it concluded that even if the defendant were a citizen, Milligan\nwould not preclude his trial by military commission. The Court instead ruled that\nthe decision in Milligan must be understood \xe2\x80\x9cas having particular reference to the\nfacts\xe2\x80\x9d of that case. Id. at 45. The particular facts that the Court found significant\nappear to have been that the saboteur in Quirin had engaged in acts that made him\na belligerent, while Milligan, \xe2\x80\x9cnot being a part of or associated with the armed\nforces of the enemy, was a non-belligerent, not subject to the law of war.\xe2\x80\x9d Id. The\nQuirin Court thus repeatedly emphasized that citizenship would not protect a\nperson \xe2\x80\x9cfrom the consequences of a belligerency which is unlawful.\xe2\x80\x9d Id. at 37; see\nalso id. (\xe2\x80\x9cCitizens who associate themselves with the military arm of the enemy\ngovernment\xe2\x80\x9d are properly subject to trial by military commission). Citizens who\nengaged in belligerent acts, thus, could be tried by military commission. See also\nColepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956) (\xe2\x80\x9c[T]he petitioner\xe2\x80\x99s\ncitizenship in the United States does not divest the Commission of jurisdiction\nover him, or confer upon him any constitutional rights not accorded any other\nbelligerent under the laws of war.\xe2\x80\x9d). To explain the limitations on Milligan, two\nscenarios merit consideration here: (1) the use of military commissions to try U.S.\ncitizens seized in the United States, and (2) the use of military commissions to try\nenemy aliens seized in the United States.\n\n253\n\n227-329 VOL_25_PROOF.pdf 263\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\n1. U.S. Citizens\nQuirin clearly establishes that U.S. citizens who act as belligerents may be tried\nby military commission for violations of the law of war. Nonetheless, as explained\nbelow, we caution that there may be some risk that there will be ambiguity\nconcerning the application of Quirin and the distinction the Quirin Court drew\nbetween the case before it and Milligan.\nAs outlined above, the analysis employed in Quirin exempted offenses against\nthe laws of war from the scope of the constitutional guarantees for trial by jury and\ngrand jury indictment for crimes. The Milligan Court had relied on the same\nconstitutional guarantees to hold that a military commission lacked jurisdiction\nand suggested that the facts that Milligan was a U.S. citizen and not in military\nservice particularly compelled preserving his right to jury trial. See 71 U.S. at 119\n(\xe2\x80\x9c[I]t is the birthright of every American citizen when charged with crime, to be\ntried and punished according to law.\xe2\x80\x9d); id. at 118 (emphasizing that Milligan was\n\xe2\x80\x9cnot a resident of one of the rebellious states, or a prisoner of war, but a citizen of\nIndiana for twenty years past, and never in the military or naval service\xe2\x80\x9d). The\nlogic of the rationale in Quirin, however, suggests that even a citizen could be\ntried by military commission if he were properly charged with any violation of the\nlaws of war. It was the nature of the offense\xe2\x80\x94an offense against the laws of war\xe2\x80\x94\nthat removed it from the scope of constitutional provisions for jury trial and grand\njury indictment. Thus, the Court noted that it was not status as an alien or citizen\nthat was critical for making the use of a military commission constitutionally\npermissible. Rather, \xe2\x80\x9coffenders were outside the constitutional guaranty of trial by\njury, not because they were aliens but only because they had violated the law of\nwar.\xe2\x80\x9d 317 U.S. at 44. In fact, Quirin made it explicit that U.S. citizenship alone\ndoes not suffice to invoke any limitation from Milligan on the jurisdiction of\nmilitary commissions. The Court explained that \xe2\x80\x9c[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance\nand direction enter this country bent on hostile acts are enemy belligerents\xe2\x80\x9d and\nmay be tried under the laws of war. Id. at 37-38. As a result, the Court declined\neven to resolve the claim that one of the eight German saboteurs was actually a\nU.S. citizen. See id. at 45.\nWe believe that, properly understood, the constitutional analysis in Quirin\ndemonstrates that any person properly charged with a violation of the laws of war,\nregardless of citizenship or membership in the armed forces (of this country or\nanother power), may be tried by military commission. The critical point for\nconstitutional analysis is that a person properly charged with an offense against the\nlaws of war has no right to an indictment or trial by jury under Article III or the\nFifth and Sixth Amendments. Citizenship and membership in the military are not\ndeterminative factors for constitutional purposes. A person can properly be\nchargeable of an offense against the laws of war (such as spying), after all, without\n\n254\n\n227-329 VOL_25_PROOF.pdf 264\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nbeing in the armed forces of a belligerent nation. The critical distinction is the\nnature of the offense. See United States v. Tiede, 86 F.R.D. 227, 254 (U.S. Ct.\nBerlin 1979) (\xe2\x80\x9cQuirin holds that whether an individual is entitled to a jury trial is\ndetermined by the nature of the crime with which he is charged.\xe2\x80\x9d). Offenses triable\nby the laws of war are not within the constitutional protections attached to criminal\ntrials. As one district court recently held, \xe2\x80\x9c[u]nder Quirin, citizens and noncitizens alike\xe2\x80\x94whether or not members of the military, or under its direction or\ncontrol, may be subject to the jurisdiction of a military commission for violations\nof the law of war.\xe2\x80\x9d Mudd v. Caldera, 134 F. Supp. 2d 138, 145-46 (D.D.C. 2001);\nsee also Colepaugh, 235 F.2d at 432 (\xe2\x80\x9c[T]he petitioner\xe2\x80\x99s citizenship in the United\nStates does not divest the Commission of jurisdiction over him, or confer upon\nhim any constitutional rights not accorded any other belligerent under the laws of\nwar.\xe2\x80\x9d).\nThe Supreme Court, however, did not go so far as to hold in Quirin that its\nconstitutional rationale undermined Milligan entirely. Instead, the Court declined\nto \xe2\x80\x9cdefine with meticulous care the ultimate boundaries of the jurisdiction of\nmilitary tribunals,\xe2\x80\x9d 317 U.S. at 45-46, and stated simply that the holding in\nMilligan should be construed as \xe2\x80\x9chaving particular reference to the facts\xe2\x80\x9d in that\ncase, id. at 45. The facts that were particularly relevant appear to have been that\nthe saboteur in Quirin who claimed citizenship had engaged in acts that made him\na belligerent. Milligan, in contrast, was not in military service, and the Court\nstressed that he was not an \xe2\x80\x9cenemy belligerent\xe2\x80\x9d and, \xe2\x80\x9cnot being a part of or\nassociated with the armed forces of the enemy, was a non-belligerent, not subject\nto the laws of war.\xe2\x80\x9d Id. at 45; see also Milligan, 71 U.S. at 121-22 (emphasizing\nthat Milligan was \xe2\x80\x9ca citizen in civil life, in nowise connected with the military\nservice\xe2\x80\x9d). Thus, the line that the Court ultimately drew in Quirin to distinguish\nMilligan may be read to suggest that a citizen (not in the U.S. military) can be\ntried by military commission when he acts as a belligerent. See 317 U.S. at 37.\nThat condition was most clearly met where citizens \xe2\x80\x9cassociate themselves with the\nmilitary arm of the enemy government.\xe2\x80\x9d Id. The distinction suggests that Milligan\ncan be explained on the basis that the actions charged in Milligan did not amount\nto acts of belligerency. Even under this approach to Quirin, we conclude that in\nthe context of the current conflict, any actions by U.S. citizens that amount to\nhostile acts against the United States or it citizens (and certainly participation in\nbiological attacks, the attacks of September 11, or similar attacks) would make a\nperson a \xe2\x80\x9cbelligerent\xe2\x80\x9d subject to trial by military commission under Quirin.\nWe caution, however, that applying this standard may raise some ambiguities.\nThe Milligan decision holds out at least the possibility that some charges that may\nbe articulated under the law of war (such as the charge of giving aid and comfort\nto the enemy used in Milligan) may not, in some circumstances, amount to acts of\nbelligerency triable by military commission. Exactly which acts place a person in\nthe category of an \xe2\x80\x9cenemy belligerent\xe2\x80\x9d under Quirin thus may be a subject of\n\n255\n\n227-329 VOL_25_PROOF.pdf 265\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nlitigation. In addition, it might be argued that Quirin should be read as imposing a\nbrighter-line test under which citizens are triable by military commission when\nthey \xe2\x80\x9cassociate themselves with the military arm of the enemy government.\xe2\x80\x9d 317\nU.S. at 37. That standard, it could be claimed, is difficult to apply here because\nthere are no organized armed forces of another belligerent nation facing the United\nStates. For the reasons outlined above, we conclude that such an approach does not\nreflect the proper constitutional analysis and is not the proper reading of Quirin.\nNonetheless, it raises a potential source of litigation risk.\nIn short, although we conclude that a U.S. citizen found to have engaged in\nactions that are properly chargeable as offenses under the laws of war could\nconstitutionally be tried by military commission in the United States, we caution\nthat in some circumstances there could be litigation risks involved in establishing\nthe exact application of the Supreme Court\xe2\x80\x99s decisions.\n2. Enemy Aliens Seized in the United States\nEven if Milligan might raise litigation risks for the use of military commissions\nto try citizens, it should not raise the same difficulties for trying aliens charged\nwith violations of the law of war. The Milligan Court repeatedly stressed the\nimportance of citizenship in describing Milligan\xe2\x80\x99s rights, and even though the\nSupreme Court has extended many constitutional protections to aliens within the\nUnited States, the distinction between the rights of citizens and aliens, especially\nin times of war, retains vitality today. As the Supreme Court explained in Johnson\nv. Eisentrager, 339 U.S. 763, 771 (1950), whatever protections may be extended\nto aliens in time of peace, \xe2\x80\x9c[i]t is war that exposes the relative vulnerability of the\nalien\xe2\x80\x99s status.\xe2\x80\x9d 9 Since the Alien Enemy Act of 1798, 1 Stat. 577 (codified as\namended at 50 U.S.C. \xc2\xa7 21), it has been established that in times of declared war,\nthe President may seize enemy aliens and intern or deport them. This \xe2\x80\x9cExecutive\npower over enemy aliens, undelayed and unhampered by litigation, has been\ndeemed, throughout our history, essential to war-time security.\xe2\x80\x9d Eisentrager, 339\nU.S. at 774. As the Court in Eisentrager explained, since an alien citizen of an\nenemy nation may constitutionally be deprived of liberty by Executive action\nsolely on the basis of his citizenship during time of war, \xe2\x80\x9cno reason is apparent\nwhy an alien enemy charged with having committed a crime should have greater\n9\nIt is well established that during war enemy aliens are not entitled to the same constitutional rights\nas citizens. See Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952) (\xe2\x80\x9cThe government\xe2\x80\x99s power to\nterminate its hospitality [to aliens] has been asserted and sustained by this Court since the question first\narose. War, of course, is the most usual occasion for extensive resort to the power.\xe2\x80\x9d); Ex parte\nColonna, 314 U.S. 510, 511 (1942) (noting \xe2\x80\x9cthe principle recognized by Congress and by this Court\nthat war suspends the right of the enemy plaintiffs to prosecute actions in our courts.\xe2\x80\x9d); Cummings v.\nDeutsche Bank und Discontogesellschaft, 300 U.S. 115, 120 (1937) (\xe2\x80\x9cBy exertion of the war power,\nand untrammeled by the due process or just compensation clause, Congress enacted laws directing\nseizure, use, and disposition of property in this country belonging to subjects of the enemy.\xe2\x80\x9d).\n\n256\n\n227-329 VOL_25_PROOF.pdf 266\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nimmunities from Executive action.\xe2\x80\x9d Id. at 784. As the Court concluded, the\n\xe2\x80\x9cConstitution does not confer a right of personal security or an immunity from\nmilitary trial and punishment upon an alien enemy engaged in the hostile service\nof a government at war with the United States.\xe2\x80\x9d Id. at 785. Although there is no\n\xe2\x80\x9cgovernment at war\xe2\x80\x9d with the United States in the current scenario, we believe that\nthe same constitutional analysis would surely apply to aliens who have entered the\nUnited States to carry on a terrorist war at the behest of any foreign power.10\nThere is some authority for the view that Milligan provides a broad standard\nguaranteeing the right to jury trial for both citizens and aliens for offenses that\nmight be charged as crimes wherever the civil courts are open, as long as the\noffenses did not take place in the field of military operations or other peculiarly\nmilitary territory. An opinion of the Attorney General issued at the end of World\nWar I took this approach. In 1918, Attorney General Gregory relied on Milligan to\nadvise President Wilson that a military commission would not properly have\njurisdiction to try a Russian national seized at the Mexican border as he attempted\nto enter the United States to conduct acts of sabotage in the service of the German\ngovernment. See Trial of Spies by Military Tribunals, 31 Op. Att\xe2\x80\x99y Gen. 356, 357\n(1918) (the \xe2\x80\x9c1918 Opinion\xe2\x80\x9d). The opinion reasoned that the guarantee of a jury\ntrial in criminal matters in Article III, Section 2 and the guarantees of the Fifth and\nSixth Amendments should be read to constrain the use of military commissions. It\nconcluded that \xe2\x80\x9cmilitary tribunals, whether courts-martial or military commissions, cannot constitutionally be granted jurisdiction to try persons charged with\nacts or offences committed outside of the field of military operations or territory\nunder martial law or other peculiarly military territory.\xe2\x80\x9d Id. at 361. Attorney\nGeneral Gregory proceeded from that premise to conclude that the offense of\nspying\xe2\x80\x94made triable by military commission\xe2\x80\x94must be narrowly construed to\ninvolve actually passing through an enemy\xe2\x80\x99s lines of defenses in an area of\nmilitary operations. See id.; see also id. at 357 (emphasizing that defendant \xe2\x80\x9chad\nnot entered any camp, fortification or other military premises of the United\nStates\xe2\x80\x9d).11\n10\nWe do not intend to address exhaustively here the Supreme Court\xe2\x80\x99s decisions extending constitutional protections to aliens within the United States. We note, however, that the Court has explained\nsuch protections by stating that they extend to aliens who are lawfully in the United States and who\nhave \xe2\x80\x9cdeveloped substantial connections with this country,\xe2\x80\x9d United States v. Verdugo-Urquidez, 494\nU.S. 259, 271 (1990), or as the Court recently put it, have \xe2\x80\x9caccepted some societal obligations,\xe2\x80\x9d id.\nat 273. It seems unlikely, to say the least, that terrorists here on long-term missions to plot hostile acts\ncould satisfy both of these conditions.\n11\nSpecifically, the Attorney General addressed Article 82 of the Articles of War, which stated that\n\xe2\x80\x9cAny person who in time of war shall be found lurking or acting as a spy in or about any of the\nfortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere,\nshall be tried by a general court-martial or by a military commission, and shall, on conviction thereof,\nsuffer death.\xe2\x80\x9d 31 Op. Att\xe2\x80\x99y Gen. at 358. He concluded that, because of constitutional constraints, the\nterm \xe2\x80\x9cor elsewhere\xe2\x80\x9d could not be read to permit the trial by military commission of a defendant who\nwas not seized in peculiarly military territory. Id. at 361.\n\n257\n\n227-329 VOL_25_PROOF.pdf 267\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nWe believe that the 1918 Opinion is best understood as an attempt to articulate\nthe current state of the law under then-existing Supreme Court decisions and that it\ndoes not reflect the best constitutional analysis. See, e.g., id. at 359 (stating that\nMilligan is \xe2\x80\x9cauthoritative\xe2\x80\x9d concerning \xe2\x80\x9capplication of these Constitutional\nprovisions to the question of the scope of military jurisdiction\xe2\x80\x9d). Indeed, the\nrationale in the 1918 Opinion has been thoroughly undermined by the Court\xe2\x80\x99s later\ndecision in Quirin. First, in Quirin, the Court explained at length that Article III,\nSection 2 and the Fifth and Sixth Amendments do not apply to trials by military\ncommission for offenses against the laws of war and were not intended to expand\nthe right to jury trial that existed at common law at the time of the Founding. See\n317 U.S. at 39-43. Quirin thus rejected precisely the constitutional rationales upon\nwhich the Attorney General relied. Second, Attorney General Gregory relied on\nthose constitutional rationales to expand Milligan to preclude the trial of aliens as\nwell as citizens by military commission. He gave no particular rationale for\nextending those protections to aliens charged with hostile acts in time of war. In\nQuirin, moreover, the Court took the opposite route and concluded that, despite\nMilligan, even citizens were properly triable by military commission if they\nengaged in a belligerency unlawful under the laws of war. See id. at 37-38, 45.\nFinally, Quirin can be read as rejecting even Attorney General Gregory\xe2\x80\x99s specific approach to requiring some particular nexus between the offense and\n\xe2\x80\x9cpeculiarly military territory,\xe2\x80\x9d even for the particular offense of spying under the\nArticles of War. As noted above, to preserve the jurisdiction of civil courts, the\n1918 Opinion reached the specific conclusion that spying required the defendant to\nhave crossed into \xe2\x80\x9cthe field of military operations\xe2\x80\x9d or \xe2\x80\x9cother peculiarly military\nterritory.\xe2\x80\x9d 31 Op. Att\xe2\x80\x99y Gen. at 361; see also id. at 357 (noting that the accused\n\xe2\x80\x9chad not, so far as appears, been in Europe during the war, so had not come\nthrough the fighting lines or field of military operations\xe2\x80\x9d). The saboteurs in Quirin\nrelied expressly on that opinion to argue that they had not crossed through any\nmilitary lines, had not been seized in military territory, and thus should not be\nsubject to trial before a military commission. See Cyrus Bernstein, The Saboteur\nTrial: A Case History, 11 Geo. Wash. L. Rev. 131, 152-54 (1943) (summarizing\nbriefs before Supreme Court).12 In addressing charges under the same Article of\nWar, the Quirin Court, without citing the 1918 Opinion, rejected these claims:\n\xe2\x80\x9cNor are petitioners any the less belligerents if, as they argue, they have not\nactually committed or attempted to commit any act of depredation or entered the\ntheatre or zone of active military operations.\xe2\x80\x9d 317 U.S. at 38; see also id. at 36-37\n(\xe2\x80\x9c[E]ntry upon our territory in time of war by enemy belligerents . . . for the\n\n12\nSee also Eisentrager, 339 U.S. at 780 (noting arguments in Quirin: \xe2\x80\x9cNone of the places where\nthey were acting, arrested, tried or imprisoned were, it was contended, in a zone of active military\noperations, were not under martial law or any other military control, and no circumstances justified\ntransferring them from civil to military jurisdiction\xe2\x80\x9d).\n\n258\n\n227-329 VOL_25_PROOF.pdf 268\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\npurpose of destroying property used or useful in prosecuting the war, is a hostile\nand war-like act. It subjects those who participate in it without uniform to the\npunishment prescribed by the law of war for unlawful belligerents.\xe2\x80\x9d). The\nsaboteurs in Quirin were seized in Chicago and New York (not \xe2\x80\x9cpeculiarly\nmilitary territory\xe2\x80\x9d) before they had completed any acts of sabotage, yet they were\nstill chargeable as spies and subject to trial before a military commission.13 We\nbelieve that Quirin more accurately reflects the law. Milligan does not provide a\nsubstantial basis for precluding the trial of aliens by military commission for\noffenses against the laws of war even where the courts are open in the United\nStates.14\nIn any event, the particular circumstances addressed in the 1918 Opinion will\nlikely have little relevance to the current crisis. First, many terrorists that come\ninto U.S. custody will likely be apprehended overseas and will plainly be triable\nby military commission for violations of the laws of war under Johnson v.\nEisentrager, 339 U.S. 763 (1950). Constitutional concerns related to the use of\nmilitary commissions within the United States thus will not arise. Second, the\n1918 Opinion addressed the unusual factual scenario of a defendant seized at the\nborder \xe2\x80\x9cthe moment he touched foot upon United States territory,\xe2\x80\x9d 31 Op. Att\xe2\x80\x99y\nGen. at 357, who had not completed any acts of espionage or sabotage, and who\nhad never even approached a military base. It was in addressing that fact pattern\nunder the particular offense of spying under Article 82 of the Articles of War that\nthe Attorney General concluded that there must be some connection to the field of\noperations or particularly military territory. One year later, Attorney General\nPalmer made clear that the particular facts were critical as he concluded, upon\nlearning different facts in the same case, that a military court properly did have\njurisdiction to try the same defendant. See Trial of Spy by Court Martial, 40 Op.\nAtt\xe2\x80\x99y Gen. 561 (1919). He explained that, where the defendant had \xe2\x80\x9ccrossed into\nour territory\xe2\x80\x9d and was arrested \xe2\x80\x9cabout a mile distant from encampments where\nwere stationed officers and men engaged in protecting the border against threatened invasion from the Mexican side,\xe2\x80\x9d id., a military court properly had jurisdiction.15 In the current situation, a scenario similar to that addressed in the 1918\nOpinion likely will not arise. Aliens apprehended in the United States would likely\nbe charged in connection with completed hostile acts of unlawful belligerency or\n\n13\nIn setting out the background of the case, the Court did note in a footnote that both of the beaches\non which the saboteurs landed were within areas designated the \xe2\x80\x9cEastern Sea Frontier\xe2\x80\x9d and the \xe2\x80\x9cGulf\nSea Frontier\xe2\x80\x9d by the military, see 317 U.S. at 20 n.1, but it did not rely on these facts in its decision.\n14\nWe also note that the 1918 opinion might have been influenced by the fact that it was issued on\nNovember 25, 1918, two weeks after the armistice with Germany had been signed.\n15\nBecause Attorney General Palmer based his decision entirely on the changed facts (which\nbrought the defendant within particularly military territory) and explicitly stated that \xe2\x80\x9c[t]his expression\nof my views should not be treated as overruling the opinion of my predecessor,\xe2\x80\x9d we believe it is still\nnecessary to address the legal analysis of the 1918 Opinion, as we have above.\n\n259\n\n227-329 VOL_25_PROOF.pdf 269\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nconspiracy related to those acts. There would be no credible argument that the\ndefinitions of the offenses under the laws of war should be construed narrowly so\nas not to include deliberate acts of mass murder that took approximately 3,000\nlives. *\nIII. The President May Conclude That the Laws of Armed Conflict\nApply to the Terrorist Attacks\nAs explained above, 10 U.S.C. \xc2\xa7 821 sanctions the full uses of the military\ncommission established by custom and Executive practice in the United States\nmilitary. That practice, as noted above, has permitted military commissions to try\nall offenses against the laws of war. See, e.g., Quirin, 317 U.S. at 30 (\xe2\x80\x9cCongress\nhas incorporated by reference, as within the jurisdiction of military commissions,\nall offenses which are defined as such by the law of war.\xe2\x80\x9d) (emphasis added);\nYamashita, 327 U.S. at 20 (\xe2\x80\x9cCongress gave sanction . . . to any use of the military\ncommission contemplated by the common law of war.\xe2\x80\x9d). The critical question for\ndetermining whether military commissions can properly be used here, therefore, is\nwhether the terrorist attacks have created a situation to which the laws of war\napply.16 That is, are the terrorist acts subject to the laws of war at all, or are they\nsolely criminal matters to be treated under the municipal criminal law of the\nUnited States or a particular State?\nAs outlined below, it would be difficult\xe2\x80\x94or impossible\xe2\x80\x94to articulate any\nprecise multi-pronged legal \xe2\x80\x9ctest\xe2\x80\x9d for determining whether a particular attack or\nset of circumstances constitutes \xe2\x80\x9cwar\xe2\x80\x9d justifying application of the laws of war\xe2\x80\x94\nor to use the modern terminology, whether it is an \xe2\x80\x9carmed conflict\xe2\x80\x9d justifying use\nof the \xe2\x80\x9claws of armed conflict.\xe2\x80\x9d As the Supreme Court recognized long ago,\ndetermining whether a \xe2\x80\x9cwar\xe2\x80\x9d exists depends largely on pragmatic considerations.\nAs the Court put it in evaluating whether President Lincoln could properly invoke\nthe laws of war by imposing a blockade on the southern states at the beginning of\nthe Civil War, a conflict \xe2\x80\x9cbecomes [a war] by its accidents\xe2\x80\x94the number, power,\nand organization of the persons who originate and carry it on.\xe2\x80\x9d The Prize Cases,\n67 U.S. (2 Black) 635, 666 (1862). Precisely because it is a question that rests on\npragmatic judgments that critically affect the national defense and vital matters of\nforeign policy, it is a determination that is properly left to the political branches,\nand particularly to the President. We explain in Part III.A below that the courts\nshould defer to a presidential determination that the laws of armed conflict apply.\n*\nEditor\xe2\x80\x99s Note: When this opinion was issued, this sentence referenced the taking of \xe2\x80\x9cover 4,500\nlives,\xe2\x80\x9d which was based on the information known at that time.\n16\nBecause we conclude, as explained below, that the current conflict warrants application of the\nlaws of war and thus justifies the use of military commissions under this standard, we need not and do\nnot address whether the President\xe2\x80\x99s inherent powers as Commander in Chief would extend further to\npermit the use of military commissions in other situations.\n\n260\n\n227-329 VOL_25_PROOF.pdf 270\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nIn Part III.B, we outline more specific principles that can be derived from\nprecedents to demonstrate that the present attacks have created a set of circumstances that properly merit invocation of the laws of war.17 The scale of these\nattacks, the number of deaths they have caused, and the massive military response\nthey have demanded makes it virtually self-evident that the present situation can\nbe treated as an armed conflict subject to the laws of armed conflict.\nA. Determining Whether War Exists Is a Question for the\nPolitical Branches\nPart of the reason it is difficult to articulate any broadly applicable \xe2\x80\x9ctest\xe2\x80\x9d for\ndetermining whether a war exists is that the courts have quite properly concluded\nthat that question (and thus the triggering of the laws of war) is one for the\npolitical branches. Early in the Nation\xe2\x80\x99s history the Supreme Court recognized that\nCongress has authority to acknowledge a state of war, and that its decision to do\nso, whether formally and fully or partially and by degrees, is not subject to judicial\nquestion. See Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801) (\xe2\x80\x9c[C]ongress may\nauthorize general hostilities, in which case the general laws of war apply to our\nsituation; or partial hostilities, in which case the laws of war, so far as they\nactually apply to our situation, must be noticed.\xe2\x80\x9d); The Three Friends, 166 U.S. 1,\n63 (1887) (\xe2\x80\x9c[I]t belongs to the political department to determine when belligerency\nshall be recognized, and its action must be accepted according to the terms and\n17\nWe note that the Supreme Court\xe2\x80\x99s decision in Quirin also demonstrates that, at least if those\ncharged before a military commission are being held within the territorial United States, they would be\nable to file a petition for habeas corpus to have an Article III court test whether their cases fell within\nthe jurisdiction of a military commission\xe2\x80\x94that is, whether the offenses charged properly \xe2\x80\x9cset[] forth a\nviolation of the law of war.\xe2\x80\x9d Quirin, 317 U.S. at 46; see also id. at 29 (suggesting that some acts, even\nif considered violations of the laws of war in some countries or by some authorities, \xe2\x80\x9cwould not be\ntriable by military tribunal here . . . because they are not recognized by our courts as violations of the\nlaw of war\xe2\x80\x9d) (emphasis added); Yamashita, 327 U.S. at 9 (\xe2\x80\x9c[T]he Executive branch of the Government\ncould not, unless there was suspension of the writ, withdraw from the courts the duty and power to\nmake such inquiry into the authority of the commission as may be made by habeas corpus.\xe2\x80\x9d);\nColepaugh, 235 F.2d at 431 (holding that on habeas review court may inquire into \xe2\x80\x9capplicability of the\nlaw of war to a particular case\xe2\x80\x9d). But cf. Johnson v. Eisentrager, 339 U.S. 763, 787-90 (1950) (holding\nthat the writ of habeas corpus is not available to aliens held outside United States territory).\nIt is unclear to what extent a court would inquire into the exact question here\xe2\x80\x94namely, whether the\ncurrent situation is a \xe2\x80\x9cwar\xe2\x80\x9d permitting application of the laws of war. In Quirin, the existence of a war\nwas definitively established by a congressional declaration of war, and the Court inquired solely into\nwhether the specification of the charges against the saboteurs sufficiently \xe2\x80\x9calleges violation of the law\nof war.\xe2\x80\x9d 317 U.S. at 36. In Yamashita, the Court addressed a question closer to the one here as it\nassessed a claim that military commissions could not be used after the cessation of hostilities\xe2\x80\x94a claim\nit rejected. See 327 U.S. at 11-13. Although, as explained in text, determining whether the laws of war\napply is properly a political question, it is possible that courts will not consider themselves bound by\nevery determination of a political branch of the government that the laws of war apply. Thus, setting\nout the rationales that justify treating the current situation as \xe2\x80\x9cwar\xe2\x80\x9d may be useful for this purpose as\nwell.\n\n261\n\n227-329 VOL_25_PROOF.pdf 271\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nintention expressed.\xe2\x80\x9d); see also, e.g., 3 Cumulative Digest of United States Practice in International Law 1981-1988, at 3444 (1995) (\xe2\x80\x9cU.S. Practice\xe2\x80\x9d) (\xe2\x80\x9cThe\nCourts have also treated the fundamental issue of whether an armed conflict is\ntaking place for purposes of international or domestic law as a question to be\ndecided by the political branches.\xe2\x80\x9d) (collecting authorities); Verano v. De Angelis\nCoal Co., 41 F. Supp. 954, 954 (M.D. Pa. 1941) (\xe2\x80\x9c\xe2\x80\x98It is the well-settled law that\nthe existence of a condition of war must be determined by the political department\nof the government; that the courts take judicial notice of such determination and\nare bound thereby.\xe2\x80\x99\xe2\x80\x9d) (quoting Hamilton v. McClaughry, 136 F. 445, 449 (C.C.D.\nKan. 1905)); The Ambrose Light, 25 F. 408, 412 (S.D.N.Y. 1885) (where question\nof recognizing belligerent rights arises, courts \xe2\x80\x9cmust follow the political and\nexecutive departments, and recognize only what those departments recognize\xe2\x80\x9d);\nUnited States v. One Hundred and Twenty-Nine Packages, 27 F. Cas. 284, 289\n(E.D. Mo. 1862) (\xe2\x80\x9c[T]he status of the country as to peace or war, is legally\ndetermined by the political and not the judicial department. When the decision is\nmade the courts are concluded thereby, and bound to apply the legal rules which\nbelong to that condition.\xe2\x80\x9d).\nWe conclude that, even without any action by Congress to acknowledge a state\nof war, the President, in his constitutional role as Commander in Chief, and\nthrough his broad authority in the realm of foreign affairs, see, e.g., United States\nv. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), also has full authority\nto determine when the Nation has been thrust into a conflict that must be recognized as a war and treated under the laws of war. In The Prize Cases, the Supreme\nCourt explained that it was up to the President to determine that a state of war\nexisted that warranted according to the southern States the \xe2\x80\x9ccharacter of belligerents.\xe2\x80\x9d 67 U.S. at 670. The judiciary, the Court noted, would be bound by his\ndeterminations in evaluating whether the laws of war applied to the blockade the\nPresident had instituted:\nWhether the President in fulfilling his duties, as Commander-inchief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will\ncompel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the\ndecisions and acts of the political department of the Government to\nwhich this power was entrusted. . . . The proclamation of blockade is\nitself official and conclusive evidence to the Court that a state of war\nexisted . . . .\nId.; see also The Protector, 79 U.S. (12 Wall.) 700, 701-02 (1871) (relying on\npresidential proclamations to determine start and end dates for the Civil War);\nSalois v. United States, 33 Ct. Cl. 326, 333 (1898) (stating that if the government\n\n262\n\n227-329 VOL_25_PROOF.pdf 272\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nhad treated a band of Indians as at war, \xe2\x80\x9cthe courts undoubtedly would be\nconcluded by the executive action and be obliged to hold that the defendants were\nnot in amity\xe2\x80\x9d).\nBy making the President Commander in Chief of the armed forces, the Constitution must be understood to grant him the full authorities required for him to\neffectively defend the Nation in the event of an armed attack. Necessarily included\namong those powers must be the ability to determine whether persons responsible\nfor an attack should be subject to punishment under the laws of war. We outlined\nabove our conclusion that the President\xe2\x80\x99s powers as Commander in Chief must\ninclude the authority to convene military commissions to enforce the laws of war.\nFor largely the same reasons, the Commander in Chief\xe2\x80\x99s power should include\nauthority to determine when the armed forces are engaged in a conflict that merits\napplication of the laws of war. Use of the laws of war, after all, can be a key\ncomponent in a strategy for conducting and regulating a military campaign. The\nability to apply the laws of war means the ability to punish transgressions by an\nenemy against those laws, and thereby to compel an enemy to abide by certain\nstandards of conduct. There can be no basis for withdrawing from the Commander\nin Chief the authority to determine when the Nation has been subjected to such an\nattack as warrants the use of the laws of war to deal with the enemy.18\nB. The Terrorist Attacks Have Created a Situation That Can\nProperly Be Considered War\nAlthough the determination whether the current situation merits application of\nthe laws of war is properly committed to the discretion of the President as\nCommander in Chief, there are some standards that the President could take into\naccount. Under principles that can be gleaned both from American precedents and\nsources addressing the international laws of armed conflict, these factors indicate\nthat the laws of armed conflict are properly applicable here. As the Supreme Court\nput it in evaluating whether President Lincoln could properly invoke the laws of\nwar by imposing a blockade on the southern states at the beginning of the Civil\nWar, a conflict \xe2\x80\x9cbecomes [a war] by its accidents\xe2\x80\x94the number, power, and\norganization of the persons who originate and carry it on.\xe2\x80\x9d The Prize Cases, 67\nU.S. at 666. Where an organized force is carrying on a campaign of violence that\n18\nIt is a familiar principle that decisions made by the President in undertaking the defense of the\nNation in his role as Commander in Chief are committed to his sole discretion and are not subject to\nreview. See, e.g., Martin v. Mott, 25 U.S. 19, 30 (1827) (question whether circumstances require calling\nout the militia is committed to the discretion of the President: \xe2\x80\x9c[T]he authority to decide whether the\nexigency has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all\nother persons.\xe2\x80\x9d); see also Stewart v. Kahn, 78 U.S. (1 Wall.) 493, 506 (1870) (\xe2\x80\x9cThe measures to be\ntaken in carrying on war . . . are not defined [in the Constitution]. The decision of all such questions\nrests wholly in the discretion of those to whom the substantial powers involved are confided by the\nConstitution.\xe2\x80\x9d).\n\n263\n\n227-329 VOL_25_PROOF.pdf 273\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nreaches a sufficient level of intensity, it may be deemed an \xe2\x80\x9carmed conflict\xe2\x80\x9d by the\nPresident, thereby justifying application of the laws of armed conflict, including\ntrials for the violation of those laws.19 As explained below, the terrorist attacks\nmeet that test.\n1. American Precedents\nThe political branches of the government, in whom the Constitution vests all of\nthe war power, have long recognized that formal requirements are not the touchstone for application of the laws of war.20 Actions based on that understanding,\nmoreover, have repeatedly been upheld by the Supreme Court. Thus, for example,\nin the Quasi War with France, Congress exercised its power to authorize the\nseizure of French vessels, effectively using the rights of war, without declaring\nwar. The Supreme Court recognized that Congress could take precisely such steps\nto use principles of the laws of war without any formal declaration. See, e.g., Bas\nv. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800) (\xe2\x80\x9cCongress is empowered to declare a\ngeneral war, or Congress may wage a limited war; limited in place, in objects, and\nin time.\xe2\x80\x9d);21 see also Existence of War with the Seminoles, 3 Op. Att\xe2\x80\x99y Gen. 307\n(1838) (explaining that war may exist \xe2\x80\x9calthough no formal declaration of war has\nbeen made\xe2\x80\x9d and can even exist \xe2\x80\x9cwithout the sanction of Congress\xe2\x80\x9d).22\nIn addition, it is well established in Executive practice that war can exist (and\nthe laws of war can be applied) even if the hostile parties are not two independent\n\n19\nAcknowledging that the laws of armed conflict may be applied to the present conflict does not\nmean in any way acknowledging the terrorists as legitimate combatants with any rights under the laws\nof armed conflict. To the contrary, based on their actions to date, the terrorists are all unlawful\ncombatants stripped of any protection under the laws of armed conflict and are subject to trial for their\nviolation.\n20\nBecause most U.S. precedents addressing application of the laws of armed conflict date from\nWorld War II or before, they use the terminology of \xe2\x80\x9claw of war.\xe2\x80\x9d For consistency with the source\nmaterial, we follow that terminology in this portion of the discussion.\n21\nSee also U.S. Army Field Manual, The Law of Land Warfare, FM 27-10, ch. 1, \xc2\xb6 9 (July 1956, as\nupdated) (\xe2\x80\x9c[A] declaration of war is not an essential condition to the application of this body of law.\xe2\x80\x9d).\n22\nSimilarly, courts have recognized that the conflict in Vietnam was a war for purposes of applying\nthe laws of war, even though Congress never declared war. See, e.g., United States v. Anderson, 38\nC.M.R. 386 (C.M.A. 1968). Accordingly, violations of the laws of war during Vietnam could be\nprosecuted as war crimes by military tribunals. In court-martial proceedings arising out of the incidents\nat My Lai, the Army Court of Military Review stated that \xe2\x80\x9call charges could have been laid as war\ncrimes.\xe2\x80\x9d United States v. Calley, 46 C.M.R. 1131, 1138 (A.C.M.R. 1973); see also 3 U.S. Practice\nat 3451. The court explained why the defendant was charged under the Uniform Code of Military\nJustice by citing paragraph 507(b) of chapter 8 of the U.S. Army Field Manual, The Law of Land\nWarfare, FM 27-10, which states that \xe2\x80\x9cthe United States normally punishes war crimes as such only if\nthey are committed by enemy nationals or by persons serving the interests of the enemy State.\nViolations of the laws of war committed by persons subject to the military law of the United States will\nusually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted\nunder that Code.\xe2\x80\x9d Calley, 46 C.M.R. at 1138.\n\n264\n\n227-329 VOL_25_PROOF.pdf 274\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nsovereigns. Thus, at the outbreak of the Civil War, President Lincoln ordered a\nblockade of the southern states\xe2\x80\x94an action that effectively invoked the rules of\nwar\xe2\x80\x94without any declaration of war and without any sovereign state as an enemy.\nIn The Prize Cases, the Supreme Court addressed this action in the context of\ndetermining whether certain ships seized for attempting to run the blockade were\nlawfully captured as prizes. They would be lawful prizes only if the laws of war\napplied. In concluding that the prizes were lawful, the Court explained: \xe2\x80\x9cThe\nparties belligerent in a public war are independent nations. But it is not necessary\nto constitute war, that both parties should be acknowledged as independent nations\nor sovereign States.\xe2\x80\x9d 67 U.S. at 666;23 accord United States v. Pacific R.R., 120\nU.S. 227, 233 (1887).24 The mere fact that the terrorists are non-state actors,\ntherefore, poses no bar to applying the laws of war here.\nAmerican precedents also furnish a factual situation that is more closely analogous to the current attacks to the extent that they involve attacks by non-state\nactors that do not take place in the context of a rebellion or civil war. The analogy\ncomes from the irregular warfare carried on in the Indian Wars on the western\nfrontier during the nineteenth century. Indian \xe2\x80\x9cnations\xe2\x80\x9d were not independent,\nsovereign nations in the sense of classical international law, nor were Indian tribes\nrebels attempting to establish states. Cf. Cherokee Nation v. Georgia, 30 U.S.\n(5 Pet.) 1, 17 (1831) (Marshall, C.J.) (describing Indians tribes as \xe2\x80\x9cdomestic\ndependent nations\xe2\x80\x9d). Nevertheless, the Supreme Court has explained that the\nconflicts between Indians and the United States in various circumstances were\nproperly understood as \xe2\x80\x9cwar.\xe2\x80\x9d Thus, in Montoya v. United States, 180 U.S. 261\n(1901), the Court (for purposes of a compensation statute passed by Congress)\nexamined whether certain attacks were carried out by Indians from tribes \xe2\x80\x9cin\namity\xe2\x80\x9d with the United States, which the Court approached by determining\nwhether the Indians were at \xe2\x80\x9cwar.\xe2\x80\x9d The Court explained that the critical factor was\nwhether the Indians\xe2\x80\x99 attacks were undertaken for private gain or as a general attack\nupon the United States: \xe2\x80\x9cIf their hostile acts are directed against the Government\nor against all settlers with whom they come in contact, it is evidence of an act of\nwar.\xe2\x80\x9d Id. at 266; see also id. (critical factor is whether \xe2\x80\x9ctheir depredations are part\n\n23\nSee also Pan American World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1013 (2d\nCir. 1974) (\xe2\x80\x9c[W]ar can exist between quasi-sovereign entities.\xe2\x80\x9d).\n24\nSimilarly, in Hamilton v. McClaughry, 136 F. 445 (D. Kan. 1905), the court concluded that the\nBoxer Rebellion in China was a \xe2\x80\x9cwar\xe2\x80\x9d sufficient to confer jurisdiction on a general court-martial to try\na soldier for an offense \xe2\x80\x9cduring time of war.\xe2\x80\x9d Even though the Boxers were not a government and could\nnot be recognized as a sovereign nation, the court found that \xe2\x80\x9cthere prevailed in China a condition of\nwar\xe2\x80\x9d sufficient to justify a court-martial in applying punishments that apply during time of war. Id. at\n451; see also Arce v. State, 202 S.W. 951, 951 (Tex. Crim. App. 1918) (holding that a \xe2\x80\x9cwar\xe2\x80\x9d existed\nwhen a \xe2\x80\x9cforce organized at Monterey [in Mexico] by the direction and under the authority of the\nCarranza de facto government\xe2\x80\x9d\xe2\x80\x94an insurgent group\xe2\x80\x94attacked U.S. troops sent into Mexico, and thus\nthat prisoners seized in the engagement should not be tried in Texas courts for murder).\n\n265\n\n227-329 VOL_25_PROOF.pdf 275\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nof a hostile demonstration against the Government or settlers in general, or are for\nthe purpose of individual plunder\xe2\x80\x9d).\nSimilarly, after the Modoc Indian War of 1873, the Attorney General opined\nthat prisoners taken during the war who were accused of killing certain officers\nwho had gone to parley under a flag of truce were subject to the laws of war and\ncould be tried by a military commission. See The Modoc Indian Prisoners, 14 Op.\nAtt\xe2\x80\x99y Gen. 249 (1873). The Attorney General acknowledged that \xe2\x80\x9c[i]t is difficult\nto define exactly the relations of the Indian tribes to the United States,\xe2\x80\x9d but\nconcluded that \xe2\x80\x9cas they frequently carry on organized and protracted wars, they\nmay properly, as it seems to me, be held subject to those rules of warfare which\nmake a negotiation for peace after hostilities possible, and which make perfidy like\nthat in question punishable by military authority.\xe2\x80\x9d Id. at 253. Several Indian\nprisoners were tried by military commission and executed.\nThe Attorney General reached a similar conclusion in 1871 in addressing the\nconduct of persons who had sold ammunition and rifles to hostile Indians. By\nstatute, trading with Indians without a license was already prohibited. The\nAttorney General concluded, however, that trading with Indians \xe2\x80\x9cin open and\nnotorious hostility to the United States at the time\xe2\x80\x9d constituted an offense under\nthe Articles of War and could be tried by military commission. Unlawful Traffic\nwith Indians, 13 Op. Att\xe2\x80\x99y Gen. 470, 471 (1871). He explained that he was\nassuming \xe2\x80\x9csuch a state of hostility on the part of the Indians as amounts to war,\xe2\x80\x9d\nand acknowledged that \xe2\x80\x9c[t]his state, in our peculiar relations with Indian tribes, is\nperhaps not susceptible of an exact definition.\xe2\x80\x9d Id. at 472. He concluded:\nIt is not necessary to the existence of war that hostilities should have\nbeen formally proclaimed. When any Indian tribes are carrying on a\nsystem of attacks upon the property or persons, or both, of the settlers upon our frontiers, or of the travelers across our Territories, and\nthe troops of the United States are engaged in repelling such attacks,\nthis is war in such a sense as will justify the enforcement of the articles of war against persons who are engaged in relieving the enemy\nwith ammunition, etc.\nId.\nIt is true that many situations involving application of the laws of war in the\npast have involved conflicts between sovereigns or quasi-sovereign entities\n(including, for example, rebel movements attempting to establish governments).\nBut that fact should not be understood as in any way precluding application of the\nlaws of armed conflict to widespread terrorist violence. In the past, usually only a\nsovereign or quasi-sovereign entity attempting to establish itself as a government\nover a substantial territory could have the resources to mount and sustain a series\nof attacks of sufficient intensity to raise the question of \xe2\x80\x9cwar\xe2\x80\x9d or \xe2\x80\x9carmed conflict.\xe2\x80\x9d\n\n266\n\n227-329 VOL_25_PROOF.pdf 276\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nThe terrorist network now facing the United States has found other means to\nfinance its campaign while operating from the territory of several different nations\nat once. That change, however, cannot be considered to somehow exempt terrorist\nnetworks from the standards demanded by the laws of armed conflict and the\npunishments that would apply when the terrorists undertake violent attacks in\nviolation of those laws. Simply by operating outside the confines of the traditional\nconcepts of nation-states, terrorists cannot shield themselves from the prohibitions\nuniversally commanded by the laws of armed conflict and trial for violations of\nthose laws. The examples from the Indian Wars above here provide an apt\nanalogy. Indian tribes did not fit into the western European understanding of\nnation states\xe2\x80\x94a difficulty that Attorneys General acknowledged. But that posed\nno bar to applying the laws of war when the United States was engaged in armed\nconflict with them.\nMoreover, there is nothing in the logic of the laws of armed conflict that in any\nway restricts them from applying to a campaign of hostilities carried on by a nonstate actor with a trans-national reach. To the contrary, the logic behind the laws\nsuggests that they apply here. Generally speaking, the laws are intended to confine\nwithin certain limits the brutality of armed conflict, which might otherwise go\nwholly unchecked. Cf. The Prize Cases, 67 U.S. at 667 (the laws of war \xe2\x80\x9call tend\nto mitigate the cruelties and misery produced by the scourge of war\xe2\x80\x9d). The ability\nto punish violations of the laws of armed conflict is critical for deterring all\nforeign entities from undertaking any acts that violate those laws. If terrorists\ncould somehow be exempt from being tried for violations of the laws of war\nsimply because they do not need to rely upon a government\xe2\x80\x94or a quasi-sovereign\nstructure controlling territory\xe2\x80\x94the purposes of the laws of war would be defeated.25\nUnder the precedents outlined above, the terrorist acts are plainly sufficient to\nwarrant application of the laws of war. The attacks fit exactly the terms used in the\n\n25\nIt also bears noting that the terrorists do share one significant characteristic with the case of rebels\nor insurgents. Rebels typically are attempting to establish a government to change the political order or\nenforce their political will on an existing government. Some definitions of war, indeed, describe it as\nthe effort to impose political will by force. See, e.g., Carl von Clausewitz, On War 101 (A. Rapoport\ned., Pelican Classics 1968) (1832) (\xe2\x80\x9cWar therefore is an act of violence intended to compel our\nopponents to fulfil our will.\xe2\x80\x9d); id. at 119 (\xe2\x80\x9cWar is . . . a continuation of political commerce, a carrying\nout of the same by other means.\xe2\x80\x9d). The terrorist attacks share this characteristic: they are designed to\nenforce a political will by arms. The attacks were directed against the government and people of the\nUnited States in an effort to force the United States to alter its foreign policies by the application of\narmed force. That is a classic description of the objectives of war. Thus, even though Usama bin Laden\ndoes not have any territory that he controls and cannot be said to operate as a quasi-sovereign entity, he\nwas in effect acting in the same manner as a foreign power in attempting to enforce his political will on\nthe United States by force of arms. While that aspect of the terrorist campaign is certainly not\nnecessary for the attacks to be deemed an armed conflict, it does demonstrate that the current terrorist\nattacks share much in common with more familiar examples of armed hostilities subject to the laws of\narmed conflict.\n\n267\n\n227-329 VOL_25_PROOF.pdf 277\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\ncases above (which, as explained below, also closely parallel standards applied in\ninternational sources addressing the laws of armed conflict). The terrorists have\nengaged in a \xe2\x80\x9csystem of attacks upon\xe2\x80\x9d the United States, that are part of a \xe2\x80\x9chostile\ndemonstration against the government [and people] in general.\xe2\x80\x9d 13 Op. Att\xe2\x80\x99y Gen.\nat 472. Usama bin Laden has made it abundantly clear that he has called Muslims\nworldwide to a \xe2\x80\x9cjihad against the U.S. government, because the U.S. government\nis unjust, criminal and tyrannical.\xe2\x80\x9d CNN Interview with Osama bin Laden, Osama\nBin Laden v. the U.S.: Edicts and Statements (Mar. 1997), available at http://www.\npbs.org/wgbh/pages/frontline/shows/binladen/who/edicts.html (last visited July 26,\n2012); see also World Islamic Front Statement, Jihad Against Jews and Crusaders\n(Feb. 23, 1998), available at http://www.fas.org/irp/world/para/docs/980223-fatwa.\nhtm (last visited July 26, 2012) (\xe2\x80\x9cThe ruling to kill the Americans and their allies\xe2\x80\x94\ncivilians and military\xe2\x80\x94is an individual duty for every Muslim who can do it in any\ncountry in which it is possible to do it . . . . We\xe2\x80\x94with Allah\xe2\x80\x99s help\xe2\x80\x94call on every\nMuslim who believes in Allah and wishes to be rewarded to comply with Allah\xe2\x80\x99s\norder to kill the Americans and plunder their money wherever and whenever they\nfind it.\xe2\x80\x9d).\nIn prosecuting this self-proclaimed war, the terrorists carried out a widespread\nand coordinated attack against military and civilian targets on September 11 that\nresulted in the loss of approximately 3,000 lives. That death toll surpasses that at\nPearl Harbor, and rivals the toll at the battle of Antietam in 1862, one of the\nbloodiest engagements in the Civil War. The attacks, moreover, did not involve a\nsingle, isolated event. Rather, even if one looks solely to the events of September\n11, they involved the coordinated hijacking in different parts of the country of four\nseparate aircraft that were then used as guided weapons. And if one looks beyond\nSeptember 11, the attacks appear to be the culmination of a lengthy and sustained\ncampaign that also includes the bombings of the World Trade Center in 1993, the\nKhobar Towers in Saudi Arabia in 1996, the U.S. embassies in Kenya and\nTanzania in 1998, and the U.S.S. Cole in 2000. Especially when viewed as part of\nthat continuing series of attacks, the most recent events plainly rise to the level of\na systematic campaign of hostilities that justifies application of the laws of armed\nconflict.26\n26\nIndeed, compared to previous incidents found by the Executive Branch to trigger the application\nof the laws of armed conflict, Al Qaeda\xe2\x80\x99s terrorism campaign falls well within United States practice.\nOn December 3, 1983, two unarmed U.S. navy planes flying regular, routine reconnaissance flights\nwere fired upon by hundreds of Syrian anti-aircraft guns and surface-to-air missiles. The United States\nresponded to the attack the following day with airstrikes on the Syrian positions from which the gunfire\nand missiles had come. Two U.S. planes were shot down, and one officer was taken prisoner. The\nUnited States declared that the officer was entitled to prisoner of war status. According to a State\nDepartment press guidance, under the Geneva Conventions of 1949, \xe2\x80\x9c\xe2\x80\x98[a]rmed conflict\xe2\x80\x99 includes any\nsituation in which there is hostile action between the armed forces of two parties, regardless of the\nduration, intensity or scope of the fighting and irrespective of whether a state of war exists between the\ntwo parties.\xe2\x80\x9d 3 U.S. Practice at 3456-57.\n\n268\n\n227-329 VOL_25_PROOF.pdf 278\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nIn addition, the \xe2\x80\x9ctroops of the United States are engaged in repelling such\nattacks\xe2\x80\x9d on a massive scale. 13 Op. Att\xe2\x80\x99y Gen. at 472. Days after the attacks,\nCongress swiftly exercised its war powers to pass a joint resolution authorizing the\nPresident \xe2\x80\x9cto use all necessary and appropriate force against those nations,\norganizations, or persons he determines planned, authorized, committed, or aided\nthe terrorist attacks that occurred on September 11, 2001.\xe2\x80\x9d27 The President has not\nonly described the current situation as a \xe2\x80\x9cwar,\xe2\x80\x9d he has also directed partial\nmobilization of the Ready Reserve (thus putting at his disposal one million\nmembers of the Ready Reserve and alerting 50,000 reservists so far), he has\ndispatched three carrier battle groups and dozens of additional aircraft to the\nregion of Afghanistan, and he has launched air attacks against military targets in\nAfghanistan. In addition, fighter jets continue to patrol the skies over most major\nAmerican cities. The level of the military response determined upon by the\npolitical branches of the government in itself, in our view, justifies the conclusion\nthat the laws of war can be invoked.\nFinally, a further factor is virtually conclusive in itself in establishing that the\nattacks rise to the level of an armed conflict. In response to the attacks, NATO has\nalready taken the unprecedented step of invoking Article 5 of the North Atlantic\nTreaty, which provides that an \xe2\x80\x9carmed attack against one or more of [the parties]\nshall be considered an attack against them all.\xe2\x80\x9d North Atlantic Treaty art. 5, Apr.\n4, 1949, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246; see also Statement of NATO\nSecretary General Lord Robertson (Oct. 2, 2001), available at http://www.nato.int/\ndocu/speech/2001/s011002a.htm (last visited May 17, 2012) (\xe2\x80\x9cit has now been\ndetermined that the attack against the United States on 11 September was directed\nfrom abroad and shall therefore be regarded as an action covered by Article 5 of\nthe Washington Treaty\xe2\x80\x9d). Thus, under the mechanism provided in a treaty (which\nis part of the \xe2\x80\x9csupreme Law of the Land\xe2\x80\x9d under Article 6 of the Constitution, U.S.\nConst. art. VI, \xc2\xa7 2), it has already been determined by a unanimous vote (including\nthe vote of the United States) that the terrorist acts are an \xe2\x80\x9carmed attack\xe2\x80\x9d warranting an international response. Indeed, at least one NATO member, Great Britain,\nhas already participated with the United States in launching attacks in response to\nthe terrorist acts, and others have pledged their participation for future military\nactions. Similarly, both the Organization of American States (\xe2\x80\x9cOAS\xe2\x80\x9d) and\nAustralia and New Zealand have determined that parallel provisions in their\nmutual defense treaties applying to \xe2\x80\x9carmed attacks\xe2\x80\x9d have also been activated.28\n\n27\nPub. L. No. 107-40, 115 Stat. 224 (Sept. 14, 2001). Such a resolution was not necessary for the\nPresident to order a military response under his authority as Commander in Chief, but we note that the\nresolution was clearly an exercise of Congress\xe2\x80\x99s war power. The resolution itself acknowledges in the\npreamble that \xe2\x80\x9cthe President has authority under the Constitution to take action to deter and prevent\nacts of international terrorism against the United States.\xe2\x80\x9d 115 Stat. at 224.\n28\nSee Security Treaty Between Australia, New Zealand and the United States of America art. 2,\nSept. 1, 1951, 3 U.S.T. 3420, 3422, 131 U.N.T.S. 83, 86 (\xe2\x80\x9cANZUS Pact\xe2\x80\x9d); White House, Fact Sheet,\n\n269\n\n227-329 VOL_25_PROOF.pdf 279\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nThese actions already demonstrate recognition by other nations that the events of\nSeptember 11 constituted \xe2\x80\x9carmed attacks\xe2\x80\x9d necessitating a military response.\nIn short, the terrorist acts were not isolated acts of criminal violence; rather,\nthey were an attack against the government and people of the United States. We\nbelieve that \xe2\x80\x9cthis is war in such a sense as will justify the enforcement of the\narticles of war.\xe2\x80\x9d 13 Op. Att\xe2\x80\x99y Gen. at 472.\n2. International Law Standards\nThe precedents under American law outlined above are sufficient to establish\nconclusively that at least as of September 11, terrorist attacks on the United States\nhad created a situation that would justify a conclusion that the laws of war\nproperly apply. We realize that if a decision is made to use military commissions,\nit will also be important to justify American actions to our allies and others\ninternationally. We therefore explain below that under sources of international law\nthere are also ample authorities that could be cited to support a decision to apply\nthe laws of war to the current conflict.\nThere is, of course, no treaty to which the United States is a party that applies\nby its terms to the current conflict with a terrorist organization and that would\nsubject terrorists to the laws of war\xe2\x80\x94or as it is now more commonly referred to in\ninternational law, the \xe2\x80\x9claws of armed conflict.\xe2\x80\x9d Our discussion, therefore, turns to\nsome extent on principles reflective of \xe2\x80\x9ccustomary international law\xe2\x80\x9d concerning\nthe breadth of the laws of armed conflict. Citation of such principles, however,\nshould not be misunderstood to suggest that these principles are \xe2\x80\x9claw\xe2\x80\x9d in the sense\nthat they bind the President as Commander in Chief. Rather, they are cited to\ndemonstrate that, in the field of international law, certain principles have received\nsufficient recognition that they could be credibly cited as reflecting customary\npractice among nations. The President may choose to enforce these standards as a\nmatter of policy (and may determine as a matter of policy to have the Armed\n\nOperation Enduring Freedom Overview: Campaign Against Terrorism Results (Oct. 1, 2001),\navailable at http://2001-2009.state.gov/s/ct/rls/fs/2001/5194.htm (last visited Aug. 4, 2012) (noting that\n\xe2\x80\x9cAustralia offered combat military forces and invoked Article IV of the ANZUS Treaty, declaring\nSeptember 11 an attack on Australia\xe2\x80\x9d); Inter-American Treaty of Reciprocal Assistance art. 3(1), Sept.\n2, 1947, 62 Stat. 1681, 1700, 21 U.N.T.S. 77, 95 (\xe2\x80\x9cRio Treaty\xe2\x80\x9d) (\xe2\x80\x9can armed attack by any State against\nan American State shall be considered as an attack against all the American States\xe2\x80\x9d); Meeting of\nConsultation of Ministers of Foreign Affairs, Organization of American States, Terrorist Threat to the\nAmericas (Sept. 21, 2001), available at http://www.oas.org/OASpage/crisis/RC.24e.htm (last visited\nMay 22, 2012) (resolving \xe2\x80\x9c[t]hat these terrorist attacks against the United States of America are attacks\nagainst all American states and that in accordance with all the relevant provisions of the Inter-American\nTreaty of Reciprocal Assistance (Rio Treaty) and the principle of continental solidarity, all States\nParties to the Rio Treaty shall provide effective reciprocal assistance to address such attacks and the\nthreat of any similar attacks against any American state, and to maintain the peace and security of the\ncontinent\xe2\x80\x9d).\n\n270\n\n227-329 VOL_25_PROOF.pdf 280\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nForces of the United States adhere to similar standards), but they are not \xe2\x80\x9claw\xe2\x80\x9d that\nlimits the President as Commander in Chief.\nMany of the same standards distilled from the American precedents outlined\nabove are also reflected in international law sources addressing application of the\nlaws of armed conflict. It bears emphasis at the outset that the term \xe2\x80\x9claw of war\xe2\x80\x9d\nused in 10 U.S.C. \xc2\xa7 821 refers to the same body of international law now usually\nreferred to as the \xe2\x80\x9claws of armed conflict.\xe2\x80\x9d See, e.g., Quirin, 317 U.S. at 30-31\n(explaining that the \xe2\x80\x9claw of war\xe2\x80\x9d incorporates the \xe2\x80\x9ccommon law of war\xe2\x80\x9d and\nlooking to \xe2\x80\x9cuniversal agreement and practice\xe2\x80\x9d and \xe2\x80\x9cpractice here and abroad\xe2\x80\x9d in\ndetermining scope of the laws of war, including army manuals from Germany and\nBritain); cf. International Criminal Tribunal for the Former Yugoslavia: Decision\nin Prosecutor v. Dusko Tadic, Oct. 2, 1995, 35 I.L.M. 32, 60 (1996) (\xe2\x80\x9cProsecutor\nv. Tadic\xe2\x80\x9d) (noting changes in terminology). That refinement in terminology is not\nwithout significance, because it is designed to reflect more accurately the substantive reach of the international law restraints (and potential punishments) placed\nupon the conduct of armed conflicts. The laws of armed conflict are not restricted\nto situations of declared war\xe2\x80\x94or even undeclared war\xe2\x80\x94between nation states.\nCertain standards apply to any situation involving armed hostilities that have\nreached a sufficient level of intensity to be considered \xe2\x80\x9carmed conflict.\xe2\x80\x9d Understanding the broader scope of this body of law is particularly important, because\nthe fact that the terrorist attacks do not fit neatly into a classical concept of \xe2\x80\x9cwar\xe2\x80\x9d\nmay (improperly) pose an initial stumbling block hindering understanding of how\nthe laws of armed conflict properly apply here.\nTo begin with, the major conventions that set out international law standards\ngoverning international conflicts between states are not limited by the formal\nconcept of \xe2\x80\x9cwar.\xe2\x80\x9d Rather, each of the four Geneva Conventions of 1949, for\nexample, applies \xe2\x80\x9cto all cases of declared war or of any other armed conflict which\nmay arise between two or more of the High Contracting Parties.\xe2\x80\x9d See, e.g., Geneva\nConvention Relative to the Protection of Civilian Persons in Time of War art. 2,\nAug. 12, 1949, 6 U.S.T. 3516, 3518, 75 U.N.T.S. 287, 288 (emphasis added); see\nalso 3 U.S. Practice at 3453 (\xe2\x80\x9c[T]here need be neither a formal declaration of war\nnor a recognized state of war in order for the 1949 Geneva Conventions to come\ninto effect. The occurrence of de facto hostilities is sufficient.\xe2\x80\x9d). Thus, even in the\ncontext of hostilities between nations, it is the existence of a set of facts\xe2\x80\x94\nhostilities that amount to armed conflict\xe2\x80\x94that triggers application of the provisions of the Geneva Conventions.\nIt is true that the requirements in the Geneva Conventions apply by their terms\nsolely to conflicts between states. Thus, those conventions are not triggered by a\nconflict solely with terrorists. But that does not mean that there are not principles\nof the laws of armed conflict that apply in other scenarios. The complete set of\nrestrictions in those conventions is not the only source of the laws of armed\n\n271\n\n227-329 VOL_25_PROOF.pdf 281\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nconflict that restrict the conduct of armed hostilities under international law.29 For\nexample, common Article 3 of the Geneva Conventions was expressly designed to\nprovide a form of safety net to establish minimal standards of humanitarian\nconduct that would govern in certain conflicts not covered by the Conventions.\nThus, while the Geneva Conventions were designed to address international armed\nconflict, common Article 3 sets out some basic standards of humanitarian conduct\nthat the parties are bound to apply \xe2\x80\x9c[i]n the case of armed conflict not of an\ninternational character\xe2\x80\x9d occurring within the territory of a Party. See e.g., Geneva\nConvention Relative to the Protection of Civilian Persons in Time of War art. 3,\n6 U.S.T. at 3518.30 Similarly, the 1996 Amended Protocol II to the 1980 U.N.\nConvention on Prohibitions or Restrictions on the use of Certain Conventional\nWeapons (to which the United States is a party) further elaborates some aspects of\nthe laws of armed conflict that apply in such \xe2\x80\x9cinternal\xe2\x80\x9d armed conflicts. S. Treaty\nDoc. No. 105-1, at 39 (1997). These provisions make it plain that the laws of\narmed conflict may apply to hostilities conducted by a non-state actor. They also\nillustrate that the trigger for applying these requirements is the crossing of a\ncertain threshold of violence. The 1996 Amended Protocol II, for example,\nexplains that it does not apply to \xe2\x80\x9cinternal disturbances and tensions, such as riots,\nisolated and sporadic acts of violence and other acts of a similar nature,\xe2\x80\x9d because\nthese are not \xe2\x80\x9carmed conflicts.\xe2\x80\x9d 1996 Protocol II, art. 1(2), id.31 Where there is\nsome coordinated or organized campaign of violent acts that crosses that threshold, however, the factual situation warrants the application of the laws of armed\nconflict.\nThe standards of common Article 3, moreover, are reflective of a minimal\nstandard of conduct that some view as required in all armed conflicts. Cf. Hilaire\nMcCoubrey, International Humanitarian Law: The Regulation of Armed Conflicts\n22 (1990) (\xe2\x80\x9cMcCoubrey\xe2\x80\x9d) (\xe2\x80\x9c[I]t must be borne in mind that much of Conventional\ninternational humanitarian law forms a part of customary law . . . .\xe2\x80\x9d). The United\n29\nWe assume for purposes of this discussion that it has not been established that the terrorist\nnetwork carrying out the attacks was acting effectively as an agent for another nation. If the terrorists\nwere acting as agents for another state, or were sponsored and supported by a state, there could be no\nquestion that the attacks constituted an international conflict to which the laws of armed conflict apply.\n30\nCommon Article 3 extends only certain prohibitions under international law to covered internal\nconflicts. It does not extend prisoner of war status or immunity from domestic prosecution to rebels.\nSee 3 U.S. Practice at 3448 (\xe2\x80\x9cCommon Article 3 did not grant rebels the benefits of prisoner-of-war\nstatus and thus immunity from prosecution for combatant acts.\xe2\x80\x9d) (collecting authorities); id. at 3464\n(\xe2\x80\x9cArticle III does not provide any immunity from prosecution to individuals for engaging in combatant\nacts.\xe2\x80\x9d).\n31\nThis language is identical to that contained in the 1977 Protocol II to the Geneva Conventions.\nSee Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection\nof Victims of Non-International Armed Conflicts art. 1(2), June 8, 1977, 1125 U.N.T.S. 609, 611. The\nUnited States has signed Protocol II, but is not a party to it. President Reagan forwarded the Protocol to\nthe Senate for advice and consent to ratification on January 29, 1987, but it has not been ratified. See\n3 U.S. Practice at 3428-34.\n\n272\n\n227-329 VOL_25_PROOF.pdf 282\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nStates recognized that some such minimal principles could be enforced against\nenemies as long ago as 1945 when the International Military Tribunal at Nuremberg applied standards of the Geneva and Hague Conventions to German conduct\non the Eastern Front even though the Soviet Union had expressly denounced the\nGeneva Conventions before the war. See id. at 22-23.32 Since then, the United\nStates has supported statements in the United Nations of minimal standards,\nreflective of the principles in common Article 3, that must be observed \xe2\x80\x9cby all\ngovernmental and other authorities responsible for action in armed conflict.\xe2\x80\x9d G.A.\nRes. 2444 (XXIII), \xc2\xb6 1, U.N. GAOR, 23d Sess., U.N. Doc. A/7433 (1968). This\nstatement acknowledges that the laws of armed conflict can be applied to a broad\nrange of situations involving non-state actors, for it addresses not only the actions\nof governments, but also \xe2\x80\x9cother authorities\xe2\x80\x9d responsible for \xe2\x80\x9caction in armed\nconflict.\xe2\x80\x9d The United States, in supporting this resolution, indicated that it\n\xe2\x80\x9cconstituted a reaffirmation of existing international law.\xe2\x80\x9d U.N. GAOR, 3d\nComm., 23d Sess., 1634th mtg. at 2, U.N. Doc. A/C.3/SR 1634 (1968); see also\nLetter for Sen. Edward Kennedy, Chairman of the Subcommittee on Refugees of\nthe Committee on the Judiciary, from J. Fred Buzhardt, General Counsel, Department of Defense (Sept. 22, 1972), reprinted in 67 Am. J. Int\xe2\x80\x99l L. 122, 124 (1973)\n(noting that Hague Conventions of 1907, Geneva Conventions of 1949, and G.A.\nRes. 2444 reflect existing international law).\nA final source worth noting as reflective of some current theories of the scope\nof the laws of armed conflict is the decision of the International Criminal Tribunal\nfor the Former Yugoslavia. That Tribunal concluded that certain standards of\nconduct must constrain all forms of armed conflict of whatever nature. The\nTribunal was faced with arguments that certain constraints applied solely to\ninternational armed conflict and that only the minimal standards of common\nArticle 3 of the Geneva Conventions could apply to \xe2\x80\x9cinternal\xe2\x80\x9d conflicts. While\nacknowledging that a fuller set of restrictions would apply to inter-state conflicts,\nthe Tribunal concluded that at least some standards (both articulated by common\nArticle 3 and dictated by customary law) would apply to any situation of armed\nconflict and explained that an \xe2\x80\x9carmed conflict\xe2\x80\x9d triggering application of these rules\n\xe2\x80\x9cexists whenever there is a resort to armed force between States or protracted\narmed violence between governmental authorities and organized armed groups or\nbetween such groups within a State.\xe2\x80\x9d Prosecutor v. Tadic, 35 I.L.M. at 54. The\ncritical factor was whether hostilities had \xe2\x80\x9cexceed[ed] the intensity requirement,\xe2\x80\x9d\nid. at 55, sufficiently to be considered an \xe2\x80\x9carmed conflict.\xe2\x80\x9d As the decision of the\n32\nSee also Quirin, 317 U.S. at 30, 35 (explaining that by permitting trial of offenses against the\n\xe2\x80\x9claw of war,\xe2\x80\x9d Congress had incorporated by reference the \xe2\x80\x9ccommon law applied by military tribunals\xe2\x80\x9d\nand principles \xe2\x80\x9crecognized in practice both here and abroad\xe2\x80\x9d); FM 27-10 ch. 1, \xc2\xb6 4(b) (\xe2\x80\x9cAlthough some\nof the law of war has not been incorporated in any treaty or convention to which the United States is a\nparty, this body of unwritten or customary law is firmly established by the custom of nations and well\ndefined by recognized authorities on international law.\xe2\x80\x9d).\n\n273\n\n227-329 VOL_25_PROOF.pdf 283\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nTribunal suggests, the laws of armed conflict provide some minimal standards for\nany armed conflict, regardless of the particular characteristics of the conflict as\none between states, or states and non-state actors. Thus, the Tribunal suggested\nthat certain \xe2\x80\x9c[p]rinciples and rules of humanitarian law reflect \xe2\x80\x98elementary\nconsiderations of humanity\xe2\x80\x99 widely recognized as the mandatory minimum for\nconduct in armed conflicts of any kind.\xe2\x80\x9d Id. at 70 (emphasis added).\nIt should be clear from the foregoing that there is sufficient authority in current\nsources under international law for the President to justify to the international\ncommunity a decision that it will be the policy of the United States to apply the\nlaws of armed conflict to terrorists in the current situation. The trigger for\napplication of the laws does not depend on a formal concept of \xe2\x80\x9cwar,\xe2\x80\x9d or on the\npolitical status of those engaged in the hostilities as sovereigns or states, but rather\nupon the fact of armed hostilities that have reached a certain level of intensity. If\nthe attacks carried out by the terrorists meet the standards of initiating an \xe2\x80\x9carmed\nconflict,\xe2\x80\x9d therefore, the laws of armed conflict can be invoked. As one commentator summarized, \xe2\x80\x9c[f]or the purposes of bringing into operation the rules regulating\nthe conduct of hostilities, it no longer matters whether those hostilities are\ncharacterized as war. It is the factual concept of armed conflict rather than the\ntechnical concept of war which makes those rules applicable.\xe2\x80\x9d C. Greenwood, The\nConcept of War in Modern International Law, 36 Int\xe2\x80\x99l & Comp. L.Q. 283, 304\n(1987); see also McCoubrey at 24 (\xe2\x80\x9c[War] has been deliberately abandoned as a\ndefinition of the circumstances of application of the jus in bello in general and of\ninternational humanitarian law in particular.\xe2\x80\x9d).33\nIn light of this analysis, two mistaken concepts that might be raised as a basis\nfor denying the application of the laws of armed conflict to the terrorist attacks are\nworth addressing and dismissing here. First, some might point to statements in\nolder texts that \xe2\x80\x9cwar\xe2\x80\x9d is a condition that exists only between states and claim that\nthere can be no war (and hence no application of the laws of war) here. See, e.g.,\n2 L. Oppenheim, International Law: A Treatise \xc2\xa7 54, at 202 (H. Lauterpacht ed.,\n7th ed. 1952) (\xe2\x80\x9cWar is a contention between two or more States through their\narmed forces, for the purpose of overpowering each other and imposing such\nconditions of peace as the victor pleases.\xe2\x80\x9d); id. \xc2\xa7 56, at 203 (\xe2\x80\x9cTo be war, the\ncontention must be between States.\xe2\x80\x9d).\nThere are several flaws in such an argument. To the extent it relies on the syllogism that, if a conflict is not between states it cannot be \xe2\x80\x9cwar\xe2\x80\x9d and therefore the\nlaws of war cannot apply, the conclusion is contradicted by the terms of the\nGeneva Conventions and consistent practice since World War II. As outlined\n33\nBased on rationales similar to those outlined here, multiple commentators have concluded that\nterrorist acts may properly trigger application of the laws of war. See, e.g., Crona & Richardson, 21\nOkla. City U.L. Rev. 349; Bradley Larschan, Legal Aspects to the Control of Transnational Terrorism:\nAn Overview, 13 Ohio N.U.L. Rev. 117, 147-48 (1986); Should the Laws of War Apply to Terrorists?,\n79 Am. Soc\xe2\x80\x99y Int\xe2\x80\x99l L. Proc. 109, 109-11 (1985).\n\n274\n\n227-329 VOL_25_PROOF.pdf 284\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nabove, it has long been recognized that formal concepts of \xe2\x80\x9cwar\xe2\x80\x9d do not constrain\napplication of the laws of armed conflict and that non-state actors are properly\nbound by certain minimum standards of international law when they engage in\narmed hostilities. In addition, the syllogism itself distorts what was meant by the\nstatement that war \xe2\x80\x9cmust be between States.\xe2\x80\x9d In making that assertion, authors\nsuch as Oppenheim were suggesting only that for a conflict to be legitimate\nwarfare it must be between states. It does not follow from that proposition that, if\nthere is a conflict that amounts to warfare and non-state actors are involved, none\nof the restrictions on armed conflict applies at all. To the contrary, as Oppenheim\nrecognized, quite a different conclusion follows\xe2\x80\x94namely, that non-state actors\nwho engage in warfare are engaged in a form of warfare that is illegitimate. See,\ne.g., Oppenheim \xc2\xa7 254, at 574. In other words, they do not escape the laws of war\nbecause they are non-state actors. Instead, they are unlawful belligerents. Finally,\nthe absolutist proposition that rules restraining the conduct of armed conflict apply\nonly to a war between two states was not accepted even by authors such as\nOppenheim. The proposition thus would not even accurately reflect the analysis\napplied in the discussions of the laws of war on which it purports to rely. Oppenheim, for example, fully acknowledged that at least some aspects of the laws of\nwar would properly apply in a conflict between a state and a non-state actor such\nas an insurgent group in a civil war. See id. \xc2\xa7 59, at 209-10. Thus, even in older\ntreatments of the subject, there is nothing talismanic about the involvement of\nstates in a conflict for purposes of applying certain fundamental aspects of the\nlaws of war.\nA related mistaken idea would be the suggestion that a trans-national attack by\na non-state actor is somehow less susceptible to treatment under the law of war\nthan such an attack carried on internally within a given state. It is true that the\ntrans-national aspect of the attacks carried out by a non-state organization presents\na somewhat novel situation. Articulations of the laws of armed conflict concerning\nnon-state actors have been most fully developed in the context of internal conflicts\nin the form of rebellions or civil wars within a particular state. But, as explained\nabove, there is nothing in the logic of the laws of armed conflict that would restrict\nits application in the case of a trans-border attack by a private armed band.\nThe critical question for determining whether the laws of armed conflict apply\nhere, therefore, is whether the terrorist attacks were a sufficiently organized and\nsystematic set of violent actions that they crossed a sufficient level of intensity to\nbe considered \xe2\x80\x9carmed conflict.\xe2\x80\x9d There can be no doubt that, whatever the \xe2\x80\x9clevel of\nintensity\xe2\x80\x9d required to create an armed conflict, the gravity and scale of the\nviolence inflicted on the United States on September 11 crossed that threshold. To\nuse the words of the 1996 Amended Protocol II to the 1980 U.N. Convention on\nConventional Weapons, which provides one guidepost for determining when an\narmed conflict exists, the attacks are not properly likened to mere \xe2\x80\x9criots, isolated\nand sporadic acts of violence and other acts of a similar nature,\xe2\x80\x9d which do not\n\n275\n\n227-329 VOL_25_PROOF.pdf 285\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nconstitute \xe2\x80\x9carmed conflict.\xe2\x80\x9d Rather, as explained above, the terrorists have carried\non a sustained campaign against the United States, culminating most recently with\na devastating series of coordinated attacks resulting in a massive death toll.\nIn addition, the United States has determined that it is necessary to respond to\nthe attacks with military force. That decision is significant because one element\noften cited for determining whether a situation involving a non-state actor rises to\nthe level of an \xe2\x80\x9carmed conflict\xe2\x80\x9d (for example, for purposes of common Article 3 of\nthe Geneva Conventions) is whether a state responds with its regular military\nforces. The United States has urged this position. See 3 U.S. Practice \xc2\xa7 2, at 3443;\nsee also G.I.A.D. Draper, The Red Cross Conventions 15-16 (1958) (under\ncommon Article 3, \xe2\x80\x9carmed conflict\xe2\x80\x9d exists when the government is \xe2\x80\x9cobliged to\nhave recourse to its regular military forces\xe2\x80\x9d). Here, this criterion is overwhelmingly satisfied. As outlined above, the United States has found it necessary to respond\nwith a massive use of military force. The current operations in Afghanistan and\ncontinuing preparations for a sustained campaign easily establish that the situation\nhere involves an armed conflict for purposes of international law.\nFinally, as noted above, NATO\xe2\x80\x99s decision to invoke Article 5 of the North\nAtlantic Treaty by deeming the terrorist acts an \xe2\x80\x9carmed attack\xe2\x80\x9d conclusively\ndemonstrates that standards under international law for identifying an \xe2\x80\x9carmed\nconflict\xe2\x80\x9d have been satisfied here.\nIV. Under the Laws of War, the Terrorists Are Unlawful Combatants\nSubject to Trial and Punishment for Violations of the Laws of War\nWe stress at the outset that determining that the terrorist attacks can be treated\nunder the rubric of the \xe2\x80\x9claws of war\xe2\x80\x9d does not mean that terrorists will receive the\nprotections of the Geneva Conventions or the rights that the laws of war accord to\nlawful combatants. To the contrary, as the U.S. Army Field Manual, The Law of\nLand Warfare, makes clear, persons who do not comply with the conditions\nprescribed for recognition as lawful combatants (which include wearing a fixed\ninsignia and bearing arms openly) are not entitled to status as prisoners of war and\nmay be punished for hostile acts in violation of the laws of armed conflict.34 The\nSupreme Court made the same distinction clear in Quirin: \xe2\x80\x9cBy universal agreement and practice the law of war draws a distinction between . . . those who are\n34\nFM 27-10, ch. 3, \xc2\xb6 80 (\xe2\x80\x9cPersons, such as guerillas and partisans, who take up arms and commit\nhostile acts without having complied with the conditions prescribed by the laws of war for recognition\nas belligerents . . . are, when captured by the injured party, not entitled to be treated as prisoners of war\nand may be tried and sentenced to execution or imprisonment.\xe2\x80\x9d); id. \xc2\xb6 81 (\xe2\x80\x9cPersons who, without\nhaving complied with the conditions prescribed by the laws of war for recognition as belligerents . . .\ncommit hostile acts about or behind the lines of the enemy are not to be treated as prisoners of war and\nmay be tried and sentenced to execution or imprisonment.\xe2\x80\x9d); id. \xc2\xb6 82 (\xe2\x80\x9cPersons in the foregoing\ncategories who have attempted, committed, or conspired to commit hostile or belligerent acts are\nsubject to the extreme penalty of death because of the danger inherent in their conduct.\xe2\x80\x9d).\n\n276\n\n227-329 VOL_25_PROOF.pdf 286\n\n10/22/12 11:10 AM\n\n\x0cLegality of the Use of Military Commissions to Try Terrorists\n\nlawful and unlawful combatants. . . . Unlawful combatants . . . are subject to trial\nand punishment by military tribunals for acts which render their belligerency\nunlawful.\xe2\x80\x9d 317 U.S. at 30-31.\nWe indicate here, based on preliminary research, some offenses that might be\ncharged under the laws of war to establish the jurisdiction of military commissions. The list here is representative only and is not intended by any means to be\nexhaustive.35\nAs noted above, the terrorists involved in the attacks did not meet even the\nminimal conditions required to be recognized as lawful combatants. It is open to\nsome doubt whether persons acting without authorization of a state could ever\nundertake hostile acts without violating the laws of war. But we need not reach\nthat theory to conclude that the terrorists did not meet even the most basic\nrequirements for complying with the laws of war as lawful combatants. They were\nnot bearing arms openly and wearing fixed insignia. Thus, all of their hostile acts\ncan be treated as violations of the laws of war. It is settled that any violation of the\nlaws of war may be prosecuted as a \xe2\x80\x9cwar crime.\xe2\x80\x9d The U.S. Army Field Manual,\nThe Law of Land Warfare, provides that \xe2\x80\x9c[a]ny person, whether a member of the\narmed forces or a civilian, who commits an act which constitutes a crime under\ninternational law is responsible therefor and liable to punishment.\xe2\x80\x9d FM 27-10,\nch. 8, \xc2\xb6 498. \xe2\x80\x9cThe term \xe2\x80\x98war crime\xe2\x80\x99 is the technical expression for a violation of\nthe law of war by any person or persons, military or civilian. Every violation of the\nlaws of war is a war crime.\xe2\x80\x9d Id. \xc2\xb6 499.36 Specific offenses here could include\nviolations of the rule prohibiting \xe2\x80\x9c[u]se of civilian clothing by troops to conceal\ntheir military character,\xe2\x80\x9d id. \xc2\xb6 504(g),37 the rule prohibiting \xe2\x80\x9c[f]iring on localities\nwhich are undefended and without military significance,\xe2\x80\x9d id. \xc2\xb6 504(d), and the rule\nprohibiting deliberate targeting of civilian populations.38\n\n35\nThe substance of the laws of war, and of the offenses defined by the laws of war, can be determined by looking to past American practice, especially the codification of the laws of war compiled by\nthe United States Army in The Law of Land Warfare, and to sources of international law defining the\nlaws of war, see, e.g., Quirin, 317 U.S. at 30 (examining \xe2\x80\x9cuniversal agreement and practice\xe2\x80\x9d and\nsources from Great Britain and Germany, among other countries).\n36\nThe Manual further states that \xe2\x80\x9c[a]s the international law of war is part of the law of the land of\nthe United States, enemy personnel charged with war crimes are tried directly under international law\nwithout recourse to the statutes of the United States. However, directives declaratory of international\nlaw may be promulgated to assist such tribunals in the performance of their function.\xe2\x80\x9d Id. \xc2\xb6 505(e).\n37\nOne precedent from a trial before a military commission in the Civil War provides a useful\nparallel to the terrorist attacks. In 1865 some confederate soldiers were tried for \xe2\x80\x9cviolations of the laws\nand usages of civilized war\xe2\x80\x9d in that they \xe2\x80\x9ccame on board a United States merchant steamer in the port\nof Panama \xe2\x80\x98in the guise of peaceful passengers\xe2\x80\x99 with the purpose of capturing the vessel and converting\nher into a Confederate cruiser.\xe2\x80\x9d Quirin, 317 U.S. at 32 n.10.\n38\nSee, e.g., FM 27-10, ch. 2, \xc2\xb6 25 (\xe2\x80\x9c[I]t is a generally recognized rule of international law that\ncivilians must not be made the object of attack directed exclusively against them . . . .\xe2\x80\x9d); id. \xc2\xb6 39 (\xe2\x80\x9cThe\nattack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are\nundefended is prohibited.\xe2\x80\x9d). It is a commonly recognized principle under the customary laws of war\n\n277\n\n227-329 VOL_25_PROOF.pdf 287\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nIn addition, individuals can be prosecuted under the laws of armed conflict\nusing standard theories of aiding and abetting and conspiracy. The U.S. Army\nField Manual provides that \xe2\x80\x9c[c]onspiracy, direct incitement, and attempts to\ncommit, as well as complicity in the commission of, crimes against peace, crimes\nagainst humanity, and war crimes are punishable.\xe2\x80\x9d FM 27-10, ch. 8, \xc2\xb6 500.\nCommanders can also be held responsible for war crimes committed either under\ntheir orders or by those under their command.39\nPATRICK F. PHILBIN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\nthat civilian populations should not be the deliberate, sole target of attack. Thus, G.A. Res. 2444,\nsupported by the United States, noted that \xe2\x80\x9cit is prohibited to launch attacks against the civilian\npopulation as such.\xe2\x80\x9d Id. \xc2\xb6 1(b); cf. Hersch Lauterpacht, The Problem of the Revision of the Law of War,\n29 Brit. Y.B. Int\xe2\x80\x99l L. 360, 369 (1952) (\xe2\x80\x9c[I]t is in [the] prohibition, which is a clear rule of law, of\nintentional terrorization\xe2\x80\x94or destruction\xe2\x80\x94of the civilian population as an avowed or obvious object of\nattack that lies the last vestige of the claim that war can be legally regulated at all. Without that\nirreducible principle of restraint there is no limit to the licence and depravity of force.\xe2\x80\x9d).\n39\nSee, e.g., The Law of Land Warfare, FM 27-10, ch. 8, \xc2\xb6 501 (\xe2\x80\x9cIn some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other\npersons subject to their control. . . . Such a responsibility arises directly when the acts in question have\nbeen committed in pursuance of an order of the commander concerned. The commander is also\nresponsible if he has actual knowledge, or should have knowledge, through reports received by him or\nthrough other means, that troops or other persons subject to his control are about to commit or have\ncommitted a war crime and he fails to take the necessary and reasonable steps to insure compliance\nwith the laws of war or to punish violators thereof.\xe2\x80\x9d); see also Yamashita, 327 U.S. at 14-18.\n\n278\n\n227-329 VOL_25_PROOF.pdf 288\n\n10/22/12 11:10 AM\n\n\x0c'