Justice and the Enemy

by William Shawcross

  The Carter administration signed the Protocol I treaty, but held off on ratification and so it did not became part of U.S. law. Ten years later President Reagan announced that the United States would not ratify the Protocol; he declared that to give terrorists Geneva Convention protections would aid “the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices.” 11

  At the time, President Reagan’s decision was greeted with widespread approval, including from newspapers that were not his natural supporters, such as the New York Times and the Washington Post. Given its consistent and strongly expressed opposition to President Bush’s actions some fifteen years later, the New York Times’ view is particularly relevant. In 1987 it carried an editorial headlined “Denied: A Shield for Terrorists,” which agreed with President Reagan that giving terrorists the legal status of P.O.W.s was “fundamentally and irreconcilably flawed.”

  Despite the U.S. government’s rejection, the Protocol was ratified by the great majority of the United Nations’ members, including all of America’s European allies. Since then many of them have tended to view America’s refusal to ratify as reactionary and contrary to the spirit of international law. They also consider that even without U.S. ratification, Protocol 1 is binding on the United States. This argument accounts for much of the transatlantic divide over detention issues. European states seem to have difficulty accepting that America’s refusal to ratify has serious moral grounds—including the protection of civilians against brutal and illegal terrorist combatants.

  In the United States after 9/11, when further attacks were thought to be imminent, and when intelligence from captured terrorists was deemed to be essential, the attitude that the Bush administration had inherited from President Reagan seemed correct. Indeed, at the time even Eric Holder, a Democratic lawyer and President Obama’s future attorney general, approved the Bush administration policy and said on CNN, “One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located.... Under the Geneva Convention . . . you are really limited in the amount of information you can elicit from people. It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention.”12

  On November 13, 2001, President Bush took a further important step away from the use of the criminal law enforcement paradigm and towards the application of military justice for captured terrorists. He issued a military order on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” Its intent was “to protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order . . . to be tried for violations of the laws of war and other applicable laws by military tribunals.”

  The new military courts were to be based closely on a military tribunal created by Franklin Roosevelt in 1942, which the Supreme Court had unanimously upheld.

  Military commissions have long been a recognized part of American and international legal practice. U.S. presidents have claimed the authority to conduct them under Articles I and II of the U.S. Constitution. Article I, Section 8, clause 10 provides authority for national trials for those who commit criminal offenses against “the Law of Nations.” Article II gives the president the title “commander-in-chief,” which authorizes him to establish military commissions. George Washington used a military tribunal to try Major John Andre, a British spy and confederate of Benedict Arnold. They were used extensively in the U.S.–Mexico war of 1846–1848, and eight conspirators involved in President Lincoln’s 1865 assassination were tried before a commission.

  The role of military commissions has been examined on many occasions by the Supreme Court. Among the most important of these judgments is the American Civil War case of Ex Parte Milligan (1866). In this case Lambdin Milligan, a civilian and a member of the “Sons of Liberty,” was sentenced to death by a military court in Indiana, along with four others, for plotting to steal Union weapons, liberate prisoners of war, and overthrow the government and other duly constituted authorities. Milligan appealed to the circuit court for release under the 1863 Habeas Corpus Act, but the court split on whether or not civilian courts had jurisdiction over appeals from military tribunals. The Supreme Court made the significant ruling that military rule could not supersede the civil courts where they were operating properly—as they were in Indiana. The Court ordered Milligan’s release.

  The most significant case, which is often discussed in the context of the case of Khalid Sheikh Mohammed, is Ex Parte Quirin (1942). Richard Quirin was one of eight Nazi saboteurs arrested in the United States in June 1942. All were Germans who had lived in America in the 1930s and two were American citizens. They returned to Germany before the war began and the Nazis trained them to infiltrate the U.S. to conduct sabotage and espionage. Hitler wanted to cripple U.S. factories and demoralize the population. In June 1942 they were landed by U-boat on the coasts of Long Island and Florida.

  They were barely competent. Two gave themselves up quickly and informed on the other six, who were quickly rounded up by the F.B.I. They were interrogated on the assumption that they would receive a civilian trial. But President Roosevelt intervened—he wanted a military trial, and he wanted executions. On June 30 he wrote to Attorney General Francis Biddle, saying that the death penalty was “called for by usage and by the extreme gravity of the war aim and the very existence of our American government.” He had no doubts about the men’s guilt and said, “it seems to me that the death penalty is almost obligatory.”The president’s intention was to demonstrate to Germany and his own public that the United States would not tolerate either espionage or sabotage. He told Biddle, “I want one thing clearly understood, Francis. I won’t give them up. . . . I won’t hand them over to any U.S. marshal armed with a writ of habeas corpus. Understand?” 13

  The difficulty was that there could be argument over what capital crime the men had committed. Biddle decided that a special military commission would be the best way of dealing with this difficult case. It would be swifter, it should be able to prove violations of the laws of war, and it would be able to administer the death penalty. It would also prevent the defendants from seeking a writ of habeas corpus and any matters of national security could be kept secret.

  The president agreed 14 and on July 2, 1942, less than three weeks after the Germans had landed, he issued Proclamation 2561, “Denying Certain Enemies Access to the Courts of the United States,” which created a military tribunal. The Proclamation stated: “The safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage, or other hostile or warlike acts, should be promptly tried in accordance with the law of war.” It explicitly denied the eight men access to civilian court.

  In a second executive order, Roosevelt constituted the commission, appointing Major General Frank McCoy as president with three major generals and three brigadier generals under him. The attorney general led the prosecution; defense counsel were assigned. The commission was allowed to admit any evidence that would “have probative value to a reasonable man.”

  The eight Germans were charged, inter alia, with having “secretly and covertly passed, in civilian dress, contrary to the law of war,” through U.S. military and naval lines and defenses for the purpose of committing acts of sabotage, espionage, “and other hostile acts” to destroy certain war industries, war utilities, and war materials within the United States.

  The trial was held in complete secrecy, so that no information should be made available to the enemy; papers as different as The Nation and the New York Times approved this wholeheartedly. The defendants all testified that they had no plans to
conduct sabotage in the United States. Some conceded they had originally intended to do so, but claimed that they had changed their minds on the long voyage over the Atlantic.

  Defense counsel argued that the commission had no jurisdiction in this matter, that the defendants were not in a war zone and thus the charges of violations of the law of war could not apply. Counsel further argued that the men should be prosecuted in federal court, not under a military commission.

  Biddle was robust in his prosecution, and insisted that the case was “not a trial of offenses of law of the civil courts but . . . a trial of the offenses of the law of war, which is not cognizable to the civil courts.” The prosecution emphasized the deterrent value of punishment, and insisted that the commander-in-chief had authority to act thus in a time of war.

  The defense application for a writ of habeas corpus was denied but its request that the Supreme Court convene a special session to consider the validity of the jurisdiction of the military commission was granted. Therefore, three weeks into the military trial, the proceedings had to be put on hold. In arguments that would have resonance sixty years later after 9/11, the defense maintained that nothing in the charges justified the appointment of a military commission by the president and that, moreover, only Congress had the constitutional authority to declare martial law, which was necessary for the creation of military tribunals. The defense also argued that the Milligan precedent, that enemies could not be tried in a military commission when civilian courts were open, suggested that the military commission was unconstitutional.

  But Biddle insisted that the defendants had “no capacity to sue in . . . any court” because they were enemies of the U.S. Habeas corpus was intended to protect American citizens, not subjects of a country “with which we are at war, or who are subject to its orders.”

  Ultimately, the government’s case relied upon an expansive theory of presidential power in times of war: “The President’s power over enemies who enter this country in time of war, as armed invaders intending to commit hostile acts, must be absolute.” 15

  Members of the Supreme Court were concerned lest Roosevelt might order that the Germans be executed even before they had issued a ruling and so they made haste. On July 31, 1942, the Court released a brief opinion, limited to the issue of the jurisdiction of the military commission, which the Court decided did have the authority to try the saboteurs. It offered no explanation at the time, but promised one in the future.

  Four days later, on August 3, 1942, the commission found all eight men guilty and sentenced them to death. President Roosevelt commuted the sentences of the two men who had surrendered and informed on their comrades. The remaining six men were electrocuted on August 8, 1942.

  Subsequently the Supreme Court did issue its longer opinion giving a more detailed account of its reasoning. In a crucial consideration, the opinion distinguished between lawful combatants (uniformed soldiers) and unlawful combatants (enemies who enter the country in civilian dress). The justices affirmed that the latter were subject to trial and punishment by military tribunals—an important precedent for the Bush administration after 9/11.

  Given his subsequent role at Nuremberg, the draft opinion of Justice Robert Jackson—which was not released as part of the Court’s opinion—is of particular interest. e In this, Jackson would have granted sweeping powers to the president. He concluded that (1) the president has the inherent authority to create military tribunals, (2) this authority could not be regulated by Congress, and (3) this power was by virtue of his position as commander-in-chief.

  Jackson stated, “[I]t is abundantly clear to me that it is well within the war powers of the President, as commander-in-chief, to create a non-statutory Presidential military tribunal of the sort here in question.” Nonetheless, Jackson maintained that the president’s power should be “discharged, of course, in the light of any obligation undertaken by our country under treaties or conventions or under customs and usages so generally accepted as to constitute the laws of warfare.” 16

  Jackson also questioned the Court’s ability to review the president’s actions. He concluded that dealing with enemy prisoners of war was a foreign policy and military issue that touched upon issues of national security and political questions that were wholly out of the province of the judiciary. Jackson also decided that legislation, such as the Articles of War, was not applicable to enemy combatants; rather it was meant to protect U.S. civilians in times of martial law.

  Jackson’s view was very similar to that of President Bush when he set up military courts after 9/11, almost sixty years later. “I was confident the military tribunals would provide a fair trial,” Bush wrote in his memoirs. He argued the new system struck the right balance between protecting the American people and upholding civil liberties.

  It was not so easy for President Bush as it was for President Roosevelt. In 1942, there was widespread support for the president’s decisive, even abrupt method of dealing with the German saboteurs. People accepted that America was at war and that the president had the right and the duty to lead. Indeed, the American Constitution specifically gave power in wartime to the commander-in-chief, limited to some extent by Congress but scarcely touched by the Supreme Court. Alexander Hamilton wrote in Federalist No. 78 that the executive “holds the sword of the community,” the legislature “commands the purse,” while the judiciary “has no influence over either the sword or the purse.” Until the end of the twentieth century, lawyers remained largely aside from the conduct of war and the Supreme Court deferred to the presidency. f But by the time of Al Qaeda’s attack on 9/11, the power of the judicial branch in matters of national security had grown apace, and attitudes, at home and abroad, were very different.

  Chapter 4

  RESPONSES

  ON NOVEMBER 25, 2001, the first American was killed in the war in Afghanistan. He was Johnny “Mike” Spann, a C.I.A. officer operating in the north of the country.

  In the early weeks of the U.S. campaign to overthrow the Taliban and oust Al Qaeda, thousands of their fighters were rounded up and detained in various makeshift camps around Afghanistan. There was almost nowhere to put them and some prisoners were even flown to American ships in the Arabian Sea. Several hundred others were taken to a mud-walled nineteenth century fort, Qala Jangi, near Masar-i-Sharif.

  It was immediately clear that captured enemies in this war were not like conscript prisoners of previous wars who were often relieved to be safe in P.O.W. camps. “The Islamist fighters would not stop fighting once captured,” wrote Jack Goldsmith, “but would instead use any means at their disposal to kill their enemies.” Ferocious fights against the Americans were frequent and at the end of November 2001, a group of captured Arabs who had been fighting with the Taliban used hidden weapons to take over the fort, killing Johnny Spann and others. It took U.S. forces and their Afghan allies a week of brutal combat to subdue the revolt.

  U.S. commanders knew that it would take time to build appropriate detention facilities in Afghanistan and urged the Bush administration to find another prison quickly. “Get those guys out of here,” General Tommy Franks told the Pentagon. 1

  Detention of captured enemy combatants is completely legal under the rules of war. After considering various sites, including the maximum security Disciplinary Barracks at Fort Leavenworth, Guam, and a prison ship in the Arabian Sea, the U.S. government settled on the U.S. naval base at Guantanamo in Cuba. It was isolated, well defended, and technically not part of the United States, which it was thought might lessen judicial intervention on behalf of the detainees. “The least worst place,” Secretary of Defense Donald Rumsfeld called it.

  For similar legal reasons the Clinton administration had temporarily confined thousands of Cuban and Haitian boat people in Guantanamo; Clinton did not wish to give the refugees the same legal rights as Americans. The Bush administration could thus claim that Guantanamo had precedent on its side. But it had not reckoned on international perceptions and the power of the c
ivil liberties and human rights movement. During the Second World War, the United States and the British detained hundreds of thousands of German and Italian prisoners of war, who were treated decently without there having to be any debate about their rights. A tiny number of those detained in the United States instigated habeas corpus petitions but not a single one of these was granted by a U.S. court.

  At the end of the war in 1945 there were no international lawyers clamoring to represent the Nazi defendants. Perceptions were dominated by anger at the way in which Hitler had provoked the war, by the graves filled during his fascist rule, and by the consequences for all those millions of people who now tried to pick their lives out of the rubble. And yet justice stayed the hand of vengeance.

  The first Al Qaeda and Taliban detainees arrived in Guantanamo on January 11, 2002. They were temporarily housed in Camp X Ray, which the Clinton administration had built for refugees.

  The U.S. then suffered a serious setback: the Pentagon’s Public Affairs office released photographs of some of the first detainees. They were wearing orange jumpsuits and blacked-out goggles, and many of them had their hands tied. They were confined in what seemed to be wire cages. These images were instantly beamed around the world and created an uproar that never ended.

  American and international human rights groups began to agitate on their behalf. The Bush administration made a significant mistake in not consulting adequately either Congress or its allies. Its refusal to apply the Geneva Conventions and some provisions of human rights treaties to the “unlawful combatants” it captured, though legally and historically defensible, was widely condemned.