On November 13, 2001, President Bush signed a Military Order pertaining to the

detention, treatment, and trial of certain non-citizens in the war against terrorism. The

President’s Military Order makes it apparent that he plans to treat the attacks as acts of

war rather than criminal acts, and to prosecute those responsible as war criminals, trying

them by special military commission rather than in federal court. The purpose of this

the report is to clarify the legal basis for treating the acts as war crimes and the ramifications

of applying the law of war rather than criminal statutes to prosecute the perpetrators.

The discussion focuses on the trial of alleged terrorists and conspirators by a military

commission rather than the federal courts. A longer treatment of the issues in this report

and an analysis of other relevant issues, including the Military Order, are contained in

CRS Report RL 31191

Elsea, Jennifer K.

UNT Digital Library

1 See LT.  COL.  RICHARD J.  ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST STATE-SPONSORED INTERNATIONAL TERRORISM 63-65 (1989).2 See Spencer J. Crona and Niel A. Richardson, Justice for War Criminals of Invisible Armies:(continued...)Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RS21056Updated November 28, 2001Trying Terrorists as War CriminalsJennifer ElseaLegislative AttorneyAmerican Law DivisionSummaryOn November 13, 2001, President Bush signed a Military Order pertaining to thedetention, treatment, and trial of certain non-citizens in the war against terrorism.   ThePresident’s Military Order makes it apparent that he plans to treat the attacks as acts ofwar rather than criminal acts, and to prosecute those responsible as war criminals, tryingthem by special military commission rather than in federal court.  The purpose of thisreport is to clarify the legal basis for treating the acts as war crimes and the ramificationsof applying the law of war rather than criminal statutes to prosecute the perpetrators.The discussion focuses on the trial of alleged terrorists and conspirators by a militarycommission rather than the federal courts.  A longer treatment of the issues in this reportand an analysis of other relevant issues, including the Military Order, are contained inCRS Report RL 31191. In the aftermath of the September 11 terrorist attacks on the World Trade Center andthe Pentagon, the question of whether to treat the attacks as acts of war or criminal actshas not been fully settled.  The distinction may have more than rhetorical value. Thepurpose of this report is to clarify the law enforcement implications of treating the terroristacts as war crimes and to identify the possible ramifications of applying the law of warrather than criminal statutes to prosecute the alleged perpetrators. Law Enforcement versus Law of War.  Some observers have expressedconcern that treating terrorist acts as acts of war may legitimize the acts as a lawful useof force and elevate the status of the Taliban and the terrorist networks to that oflegitimate state actors and lawful combatants.  However, it may be argued that anapplication of the law of war to terrorism does not imply lawfulness of the conflict, nordoes it imply that perpetrators are not criminals.1  Terrorists do not, by definition, conductthemselves as lawful combatants.2  Under this view, they may be treated as war criminalsCRS-22 (...continued)A New Legal and Military Approach to Terrorism, 21 OKLA. CITY U.L. REV.  349 (1996).3 Military jurisdiction in occupied areas is well established, even for ordinary crimes, as a powernecessary for military government.  See In Re Yamashita, 327 U.S. 1 (1946).  The commander alsohas the option of detaining offenders until they can be delivered to civil authorities for trial.  SeeGallagher v. United States, 423 F.2d 1371 (Ct. Cl. 1970).4 See Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (granting writ of habeas corpus to civilianconvicted by military commission for criminal offense where federal courts were available).5 Civil actions brought under 18 U.S.C. §2333 (terrorism remedies) may not be maintained for actsof war.  18 U.S.C. §2335.  Defendants convicted under criminal proceedings are estopped fromdenying responsibility in any subsequent civil suit.  18 U.S.C. §2333(b).  Under current law, it isunclear whether a conviction by military commission could be invoked in this way.6 See Insurance Exclusion Clauses and Coverage of the Events of September 11, CRS ReportRL31166 (Oct.  20, 2001).7 See DOCUMENTS ON THE LAWS OF WAR 2 (Adam Roberts and Richard Guellf, eds. 2000). and if captured, are not entitled to prisoner-of-war status under the Geneva Conventions.As suspected war criminals, they may be tried by any nation in its national courts or by amilitary commission convened by one nation or many.It appears that there are few legal impediments to adopting such an approach as toenemy belligerents who allegedly violate the law of war, especially those capturedoverseas.3  The right of the Commander in Chief to try war criminals in occupied territoryis well settled.  Determining who qualifies as an “enemy belligerent” for acts committedon U.S. territory, however, would likely present greater constitutional difficulties.4  Otherpractical considerations that may arise include the following questions: Must war crimesbe investigated by military police, possibly implicating the Posse Comitatus Act?  If federalor state police are used, must they follow the same standards that they apply to criminalcases? How will it affect the United States’ ability to extradite terrorists captured abroad?Such an approach could also have an impact on civil matters.  Will there be any effecton the possible civil liability of terrorists to compensate victims?5  Would it matter if aparticular victim was a government employee or someone located at a “military target” atthe time of an attack?  Will there be an effect on the liability of insurers?6  A decision toadopt a law of war approach to the terrorist acts currently at issue, or to all future terroristacts, could also have significant foreign policy repercussions.  What is the Law of War?  As a subset of the law of nations, the law of war is acomposite of many sources and is subject to varying interpretations constantly adjustingto address new technology and the changing nature of war.   It may also be referred to asjus in bello, or law in war, which refers to the conduct of combatants in armed conflict,as distinguished from jus ad bellum– law before war – which outlines acceptable reasonsfor nations to engage in armed conflict.7  The main thrust of its principles requires that amilitary objective be pursued in such a way as to avoid needless and disproportionatesuffering and damages. Sources of the law of war include international agreements,customary principles and rules of international law, judicial decisions by both national andCRS-38 See id. at 4.9 See id. at 9.10  U.S. CONST. art. I, § 8, cl.  10.11  Id. art. I, § 8, cl.  14. 12  10 U.S.C. § 821. Statutory offenses for which a military commission may be convened includeonly aiding the enemy, 10 U.S.C. § 904, and spying, 10 U.S.C. § 906.  13 The Articles of War were codified at 10 U.S.C. § 801 et seq. as part of the Uniform Code ofMilitary Justice (UCMJ).  Although the cases cited in this report interpret the Articles of War, therelevant sections of the UCMJ would likely be interpreted to be essentially identical.  See RobinsonO. Everett & Scott L. Silliman, Forums for Punishing Offenses Against the Law of Nations, 29WAKE FOREST L. REV. 509, 515 (1994). international tribunals, national manuals of military law, treatises, and resolutions ofvarious international bodies.8At the risk of oversimplifying the concept, three principles derived from the law ofwar may be applied to assess the legality of any use of force for political objectives.9 Military necessity.  If the use of force is justified, that use must be proportionalin relation to the anticipated military advantage or as a measure of self-defense.  Theprinciple applies to the choice of targets, weapons and methods. This principle, however,does not apply to unlawful acts of war.  There can be no excuse of necessity if the resortto the use of arms is not itself justified.Humanity.  Lawful combatants are bound to use force discriminately.  In otherwords, they must limit targets to valid military objectives and must use means no harsherthan necessary to achieve that objective.  They may not use methods designed to inflictneedless suffering, and they may not target civilians.Chivalry.  Combatants must adhere to the law of armed conflict in order to betreated as lawful combatants.  They must respect the rights of prisoners of war andcaptured civilians, and avoid behavior such as looting and pillaging.  They may notdisguise themselves as non-combatants.  Although these principles leave a great deal of room for interpretation, there can belittle doubt, assuming such acts can be viewed as acts of war, that the attacks ofSeptember 11 were not conducted in accordance with the law of war.  Even if oneconsiders the Pentagon to be a valid military target, the hijacking of a commercial airlineris not a lawful means for attacking it.Constitutional Bases for Establishing Military Commission.  TheConstitution empowers the Congress to define and punish violations of international law10as well as to establish courts with exclusive jurisdiction over military offenses.11  UnitedStates law recognizes  the legality of creating military commissions to deal with “offendersor offenses designated by statute or the law of war.”12 Under the former Articles of Warand subsequent statute,13 the President has authority to convene military commissions toCRS-414 Ex Parte Quirin, 317 U.S. 1 (1942).15 Johnson v. Eisentrager, 339 U.S. 763, 786 (1950); cf Madsen v. Kinsella,  343 U.S. 341(1952)(validating conviction by military commission of spouse of servicemember for crimecommitted in occupied territory).16 Johnson v.  Eisentrager, 339 U.S. at 786 (citing Duncan v.  Kahanamoku, 327 U.S. 304 (1945)).See Crona and Richardson, supra note 2, at 360-61.17  Ex Parte Quirin, 317 U.S. 38; see also Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53-54(1989); Audrey I. Benison, International Criminal Tribunals: Is There a Substantive Limitationon the Treaty Power?, 37 STAN. J INT'L L. 75, 99 (2001).   The same is true for a military court-martial conducted under the Uniform Code of Military Justice. Ex Parte Milligan, 71 U.S. (4Wall.) 2, 123 (1866) (noting a servicemember “surrenders his right to be tried by the civil courts”).18  Ex Parte Quirin, 317 U.S. 1, 45 (1942).19  Weiss v. United States, 510 U.S. 163 (1994) (rejecting challenge to the military justice systembased on the fact that military judges are not “appointed” by the President within the meaning ofArticle II of the Constitution, and the judges are not appointed to fixed terms of office).20 See Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866).21 Middendorf v. Henry, 425 U.S. 25 (1976) (holding there is no right to counsel under U.S. Const.amends. V or VI in summary courts-martial).22  Weiss at 178 (holding procedures established by Congress to govern military justice to beadequate to ensure a fair trial consistent with the Due Process Clause of the Fifth Amendment).try offenses against the law of war.14 Military commissions could be convened to try suchoffenses whether committed by U.S. servicemembers, civilian citizens, or enemy aliens.15A declared state of war need not exist.16Precedent.  Although the current crisis does not fit the typical mold associated withwar crimes committed by otherwise lawful combatants in obvious theaters of war, thereis precedent for convening military commissions to try accused saboteurs for conspiringto commit violations of the law of war outside of the recognized war zone.  In the WorldWar II case of Ex Parte Quirin, eight German saboteurs (one of whom was purportedlya U.S. citizen) were tried by military commission for entering the United States bysubmarine, shedding their military uniforms, and conspiring to use explosives on unknowntargets.  After their capture, President Roosevelt proclaimed that all saboteurs caught inthe United States would be tried by military commission.  The Supreme Court denied theirwrits of habeas corpus, holding that trial by such a commission did not offend theConstitution.Power of the Military Commission.  As a non-Article III court, a militarycommission is not subject to the same constitutional requirements that apply to Article IIIcourts.17 Defendants properly before a military commission, like defendants before a court-martial, have no right to demand a jury trial18 before a court established in accordance withrules governing the judiciary.19 There is no right of indictment or presentment under theFifth Amendment,20 and there may be no protection against self-incrimination or right tocounsel.21 While Congress has enacted procedures applicable to courts-martial that ensurebasic due process rights,22 no such statutory procedures exist to codify due process rightsfor defendants before military commissions.CRS-523  In re Yamashita, 327 U.S. 1 (1946).24  10 USCS § 847.25  10 U.S.C. § 848 provides for 30 days’ confinement or a fine of $100, or both, for any personwho disturbs the proceedings. 26  10 U.S.C. § 849.  Such evidence is inadmissible in a capital case in a court-martial proceeding.27  10 U.S.C. § 850.28  10 U.S.C. § 836.  The President may prescribe rules (a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under thischapter [10 USCS §§ 801 et seq.] triable in courts-martial, military commissions and other militarytribunals, and procedures for courts of inquiry, may be prescribed by the President by regulationswhich shall, so far as he considers practicable, apply the principles of law and the rules of evidencegenerally recognized in the trial of criminal cases in the United States district courts, but which maynot be contrary to or inconsistent with this chapter [10 USCS §§ 801 et seq.].     (b) All rules and regulations made under this article shall be uniform insofar as practicable. 29 Exec. Order 12,473, 49 Fed. Reg. 17, 152 (1984). These rules essentially mirror the FederalRules of Evidence. See Everett & Silliman, supra note 11, at 517.30 In re Yamashita, 327 U.S. at 20.  See Everett & Silliman, supra note 11, at 513.31 The President realized the necessity of adhering to the Articles of War in convening the militarycommission in Ex Parte Quirin.  See Evan J. Wallach, The Procedural And Evidentiary Rules ofthe Post-World War II War Crimes Trials: Did They Provide An Outline For International LegalProcedure?, 37 COLUM. J. TRANSNAT'L L. 851, 854 n.11 (1999).Congress has delegated to the President the authority to convene militarycommissions, set rules of procedure, and review their decisions. This authority may bedelegated to a field commander or any other commander with the power to convene ageneral court-martial.23 Statutes authorize prosecuting persons for failure to appear aswitness,24 punishing contempt,25 and accepting into evidence certain depositions26 andrecords of courts of inquiry.27Procedural Rules.  Procedural rules and evidentiary rules are prescribed by thePresident and may differ among commissions.28 Courts-martial are conducted using theMilitary Rules of Evidence set out in the Manual for Courts-Martial;29 however, these rulesneed not apply to trials by military commission.30  Subject to the statutory provisionsabove, the President may establish any rules of procedure and evidence he deemsappropriate.Although there may be little judicial review available to persons convicted by U.S.military commissions, it is surely necessary to provide for trials that will be fundamentallyfair under both U.S. and international standards regarding the application of the law ofwar.31  Telford Taylor noted in evaluating World War II war crimes trials: It is of the first importance that the task of planning and developing permanent judicialmachinery for the interpretation and application of international penal law be tackledimmediately and effectively. The war crimes trials, at least in Western Europe, havebeen held on the basis that the law applied and enforced in these trials is internationallaw of general application which everyone in the world is generally bound to observe.CRS-632  Telford Taylor, An Outline of the Research and Publication Possibilities of the War CrimesTrials, 9 LA. L. REV. 496, 507 (1948-49) (cited in Wallach, supra note 30, at 852.)33  See Wallach, supra note 30, at 860 (noting that the rules formulated in accordance with theLondon Agreement of August  8, 1945, by the Allies setting trial procedures for German warcriminals, served as a model for subsequent tribunals).  The rules used at the Nuremberg trialswere, in turn, largely modeled after American military commissions.  See id. at 851.34  See Major Marsha V. Mills, War Crimes in the 21st Century, 3 HOFSTRA L. & POL'Y SYMP.47, 55-56 (1999)(describing due process and evidentiary rules of the tribunals).35 See Wallach, supra note 30, at 860.36 See id. at 871-72.37 See id. at 852 (citing VIRGINIA MORRIS & MICHAEL SCHARF, 1 AN INSIDER'S GUIDE TO THEINTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 9-10 (1995)).38 See Wallach, supra note 30, at 869; Application of Homma, 327 U.S. 759, 760 (1946) (Murphy,J. dissenting).39  Ex Parte Quirin at 24-25; Colepaugh v. Looney, 235 F.2d 429 (1956). But see Eisentrager v.Johnson, 339 U.S. 763, 777-781 (1950)(alien captured overseas not entitled to habeas corpusreview). 40 See, e.g., Burns v.  Wilson, 346 U.S. 137 (1953)(declining to review merits of habeas corpuschallenges to convictions by court-martial).On no other basis can the trials be regarded as judicial proceedings, as distinguishedfrom political inquisitions.32There is some historical precedent from which an international norm regardingprocedural rights for accused war criminals might be derived.  The Nuremberg Tribunalsprovide a good starting point,33 as further refined by the International Criminal Tribunalsfor Yugoslavia and Rwanda.34 Perhaps the most recent embodiment of the requirementsof the international law of war is to be found in the procedures of the not-yet-operationalInternational Criminal Court established by the Rome Statute.The evidentiary rules used at Nuremberg and adopted by the Tokyo tribunals weredesigned to be non-technical, allowing the expeditious admission of “all evidence [theTribunal] deems to have probative value.”35  This evidence included hearsay, coercedconfessions, and the findings of prior mass trials.36 While the historical consensus seemsto have accepted that the war crimes commissions were conducted fairly,37 some observersargue that the malleability of the rules of procedure and evidence could and did have someunjust results.38  For some, the perception is that “victors’ justice” was all that was sought.Possible Challenges.  Although federal courts do not necessarily have jurisdictionto review the decisions of non-Article III courts, a defendant sentenced by a militarycommission may file a writ of habeas corpus39 challenging the jurisdiction of thecommission under of the law of war, the Constitution, relevant statutes, or militaryregulations.  Because of Congress’ power to define and punish violations of internationallaw, and due to national security implication, courts are likely to defer to the politicalbranches for an interpretation of the law of war.  A defendant might also challenge aconviction based on an alleged violation of his right to due process, but case lawdemonstrates the difficulties such a challenge would face.40  

Trying Terrorists as War Criminals

1 See LT.  COL.  RICHARD J.  ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST STATE-SPONSORED INTERNATIONAL TERRORISM 63-65 (1989).2 See Spencer J. Crona and Niel A. Richardson, Justice for War Criminals of Invisible Armies: A NewLegal and Military Approach to Terrorism, 21 OKLA. CITY U.L. REV.  349 (1996).Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RS21056October 29, 2001Trying Terrorists as War CriminalsJennifer ElseaLegislative AttorneyAmerican Law DivisionSummaryIn the aftermath of the September 11 terrorist attacks on the World Trade Centerand the Pentagon, the question of whether to treat the attacks as acts of war or criminalacts has not been fully settled.  The purpose of this report is to clarify the rationale fortreating the acts as war crimes and the ramifications of applying the law of war ratherthan criminal statutes to prosecute the perpetrators.  The discussion focuses on the trialof alleged terrorists and conspirators by a military commission rather than the federalcourts.In the aftermath of the September 11 terrorist attacks on the World Trade Center andthe Pentagon, the question of whether to treat the attacks as acts of war or criminal acts hasnot been fully settled.  The distinction may have more than rhetorical value. The purpose ofthis report is to clarify the law enforcement implications of treating the terrorist acts as warcrimes and to identify the possible ramifications of applying the law of war rather thancriminal statutes to prosecute the alleged perpetrators. Law Enforcement versus Law of War.  Some observers have expressed concernthat treating terrorist acts as acts of war may legitimize the acts as a lawful use of force andelevate the status of the Taliban and the terrorist networks to that of legitimate state actorsand lawful combatants.  However, it may be argued that an application of the law of war toterrorism does not imply lawfulness of the conflict, nor does it imply that perpetrators are notcriminals.1  Terrorists do not, by definition, conduct themselves as lawful combatants.2  Underthis view, they may be treated as war criminals and if captured, are not entitled to prisoner-of-war status under the Geneva Conventions.  As suspected war criminals, they may be tried byany nation in its national courts or by a military commission convened by one nation or many.CRS-23 Civil actions brought under 18 U.S.C. §2333 (terrorism remedies) may not be maintained for actsof war.  18 U.S.C. §2335.  Defendants convicted under criminal proceedings are estopped fromdenying responsibility in any subsequent civil suit.  18 U.S.C. §2333(b).  Under current law, it isunclear whether a conviction by military commission could be invoked in this way.4 See Insurance Exclusion Clauses and Coverage of the Events of September 11, CRS ReportRL31166 (Oct.  20, 2001).5 See DOCUMENTS ON THE LAWS OF WAR 2 (Adam Roberts and Richard Guellf, eds. 2000). 6 See id. at 4.7 See id. at 9.The Justice Department is reportedly exploring whether to adopt the law of warapproach to prosecute those responsible for the September 11 attacks.  It appears that thereare few legal impediments to adopting such an approach.  Other practical considerations thatmay arise include the following questions: Must war crimes be investigated by military police,possibly implicating the Posse Comitatus Act?  If federal or state police are used, must theyfollow the same standards that they apply to criminal cases? How will it affect the UnitedStates’ ability to extradite terrorists captured abroad?Such an approach could also have an impact on civil matters.  Will there be any effecton the possible civil liability of terrorists to compensate victims?3  Would it matter if aparticular victim was a government employee or someone located at a “military target” at thetime of an attack?  Will there be an effect on the liability of insurers?4  A decision to adopt alaw of war approach to the terrorist acts currently at issue, or to all future terrorist acts, couldalso have significant foreign policy repercussions.  What is the Law of War?  As a subset of the law of nations, the law of war is acomposite of many sources and is subject to varying interpretations constantly adjusting toaddress new technology and the changing nature of war.   It may also be referred to as jus inbello, or law in war, which refers to the conduct of combatants in armed conflict, asdistinguished from jus ad bellum– law before war – which outlines acceptable reasons fornations to engage in armed conflict.5  The main thrust of its principles requires that a militaryobjective be pursued in such a way as to avoid needless and disproportionate suffering anddamages. Sources of the law of war include international agreements, customary principlesand rules of international law, judicial decisions by both national and international tribunals,national manuals of military law, treatises, and resolutions of various international bodies.6At the risk of oversimplifying the concept, three principles derived from the law of warmay be applied to assess the legality of any use of force for political objectives.7 Military necessity.  If the use of force is justified, that use must be proportional inrelation to the anticipated military advantage or as a measure of self-defense.  The principleapplies to the choice of targets, weapons and methods. This principle, however, does notapply to unlawful acts of war.  There can be no excuse of necessity if the resort to the use ofarms is not itself justified.Humanity.  Lawful combatants are bound to use force discriminately.  In other words,they must limit targets to valid military objectives and must use means no harsher thanCRS-38  U.S. Const. art. I, § 8, cl.  10.9  U.S. CONST. art. I, § 8, cl.  14. 10  10 U.S.C. § 821. Statutory offenses for which a military commission may be convened include onlyaiding the enemy, 10 U.S.C. § 904, and spying, 10 U.S.C. § 906.  11 The Articles of War were codified at 10 U.S.C. § 801 et seq. as part of the Uniform Code ofMilitary Justice (UCMJ).  Although the cases cited in this report interpret the Articles of War, therelevant sections of the UCMJ would likely be interpreted to be essentially identical.  See RobinsonO. Everett & Scott L. Silliman, Forums for Punishing Offenses Against the Law of Nations, 29 WAKEFOREST L. REV. 509, 515 (1994). 12 Ex Parte Quirin, 317 U.S. 1 (1942).13 Johnson v. Eisentrager, 339 U.S. 763, 786 (1950); Madsen v. Kinsella,  343 U.S. 341 (1952).14 Johnson v.  Eisentrager, 339 U.S. at 786 (citing Duncan v.  Kahanamoku, 327 U.S. 304 (1945)).See Crona and Richardson, supra note 2, at 360-61.necessary to achieve that objective.  They may not use methods designed to inflict needlesssuffering, and they may not target civilians.Chivalry.  Combatants must adhere to the law of armed conflict in order to be treatedas lawful combatants.  They must respect the rights of prisoners of war and captured civilians,and avoid behavior such as looting and pillaging.  They may not disguise themselves as non-combatants.  Although these principles leave a great deal of room for interpretation, there can be littledoubt, assuming such acts can be viewed as acts of war, that the attacks of September 11were not conducted in accordance with the law of war.  Even if one considers the Pentagonto be a valid military target, the hijacking of a commercial airliner is not a lawful means forattacking it. Acts of bioterrorism, too, violate the law of war, regardless of the nature of thetarget.Constitutional Bases for Establishing Military Commission.  The Constitutionempowers the Congress to define and punish violations of international law8 as well as toestablish courts with exclusive jurisdiction over military offenses.9  United States lawrecognizes  the legality of creating military commissions to deal with “offenders or offensesdesignated by statute or the law of war.”10 Under the former Articles of War and subsequentstatute,11 the President has authority to convene military commissions to try offenses againstthe law of war.12 Military commissions could be convened to try such offenses whethercommitted by U.S. servicemembers, civilian citizens, or enemy aliens.13  A declared state ofwar need not exist.14Precedent.  Although the current crisis does not fit the typical mold associated withwar crimes committed by otherwise lawful combatants in obvious theaters of war, there isprecedent for convening military commissions to try accused saboteurs for conspiring tocommit violations of the law of war outside of the recognized war zone.  In the World WarII case of Ex Parte Quirin, eight German saboteurs (one of whom was purportedly a U.S.citizen) were tried by military commission for entering the United States by submarine,shedding their military uniforms, and conspiring to use explosives on unknown targets.  Aftertheir capture, President Roosevelt proclaimed that all saboteurs caught in the United StatesCRS-415  Ex Parte Quirin, 317 U.S. 38; see also Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53-54(1989); Audrey I. Benison, International Criminal Tribunals: Is There a Substantive Limitation onthe Treaty Power?, 37 STAN. J INT'L L. 75, 99 (2001).   The same is true for a military court-martialconducted under the Uniform Code of Military Justice. Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 123(1866) (noting a servicemember “surrenders his right to be tried by the civil courts”).16  Ex Parte Quirin, 317 U.S. 1, 45 (1942).17  Weiss v. United States, 510 U.S. 163 (1994) (rejecting challenge to the military justice systembased on the fact that military judges are not “appointed” by the President within the meaning ofArticle II of the Constitution, and the judges are not appointed to fixed terms of office).18 See Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866).19 Middendorf v. Henry, 425 U.S. 25 (1976) (holding there is no right to counsel under U.S. Const.amends. V or VI in summary courts-martial).20  Weiss at 178 (holding procedures established by Congress to govern military justice to be adequateto ensure a fair trial consistent with the Due Process Clause of the Fifth Amendment).21  In re Yamashita, 327 U.S. 1 (1946).22  10 USCS § 847.23  10 U.S.C. § 848 provides for 30 days’ confinement or a fine of $100, or both, for any person whodisturbs the proceedings. 24  10 U.S.C. § 849.  Such evidence is inadmissible in a capital case in a court-martial proceeding.25  10 U.S.C. § 850.26  10 U.S.C. § 836.  The President may prescribe rules (a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under thischapter [10 USCS §§ 801 et seq.] triable in courts-martial, military commissions and other military(continued...)would be tried by military commission.  The Supreme Court denied their writs of habeascorpus, holding that trial by such a commission did not offend the Constitution.Power of the Military Commission.  As a legislative court, a military commissionis not subject to the same constitutional requirements that apply to Article III courts.15Defendants before a military commission, like defendants before a court-martial, have no rightto demand a jury trial16 before a court established in accordance with rules governing thejudiciary.17 There is no right of indictment or presentment under the Fifth Amendment,18 andthere may be no protection against self-incrimination or right to counsel.19 While Congresshas enacted procedures applicable to courts-martial that ensure basic due process rights,20 nosuch statutory procedures exist to codify due process rights for defendants before militarycommissions.Congress has delegated to the President the authority to convene military commissions,set rules of procedure, and review their decisions. This authority may be delegated to a fieldcommander or any other commander with the power to convene a general court-martial.21Statutes authorize prosecuting persons for failure to appear as witness,22 punishingcontempt,23 and accepting into evidence certain depositions24 and records of courts ofinquiry.25Procedural Rules.  Procedural rules and evidentiary rules are prescribed by thePresident and may differ among commissions.26 Courts-martial are conducted using theCRS-526 (...continued)tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulationswhich shall, so far as he considers practicable, apply the principles of law and the rules of evidencegenerally recognized in the trial of criminal cases in the United States district courts, but which maynot be contrary to or inconsistent with this chapter [10 USCS §§ 801 et seq.].     (b) All rules and regulations made under this article shall be uniform insofar as practicable. 27 Exec. Order 12,473, 49 Fed. Reg. 17, 152 (1984). These rules essentially mirror the Federal Rulesof Evidence. See Everett & Silliman, supra note 11, at 517.28 In re Yamashita, 327 U.S. at 20.  See Everett & Silliman, supra note 11, at 513.29 The President realized the necessity of adhering to the Articles of War in convening the militarycommission in Ex Parte Quirin.  See Evan J. Wallach, The Procedural And Evidentiary Rules of thePost-World War II War Crimes Trials: Did They Provide An Outline For International LegalProcedure?, 37 COLUM. J. TRANSNAT'L L. 851, 854 n.11 (1999).30  Telford Taylor, An Outline of the Research and Publication Possibilities of the War CrimesTrials, 9 LA. L. REV. 496, 507 (1948-49) (cited in Wallach, supra note 30, at 852.)31  See Wallach, supra note 30, at 860 (noting that the rules formulated in accordance with the LondonAgreement of August  8, 1945, by the Allies setting trial procedures for German war criminals, servedas a model for subsequent tribunals).  The rules used at the Nuremberg trials were, in turn, largelymodeled after American military commissions.  See id. at 851.32  See Major Marsha V. Mills, War Crimes in the 21st Century, 3 HOFSTRA L. & POL'Y SYMP. 47,55-56 (1999)(describing due process and evidentiary rules of the tribunals).Military Rules of Evidence set out in the Manual for Courts-Martial;27 however, these rulesneed not apply to trials by military commission.28  Subject to the statutory provisions above,the President may establish any rules of procedure and evidence he deems appropriate.Although there may be little judicial review available to persons convicted by U.S.military commissions, it is surely necessary to provide for trials that will be fundamentally fairunder both U.S. and international standards regarding the application of the law of war.29Telford Taylor noted in evaluating World War II war crimes trials: It is of the first importance that the task of planning and developing permanent judicialmachinery for the interpretation and application of international penal law be tackledimmediately and effectively. The war crimes trials, at least in Western Europe, have beenheld on the basis that the law applied and enforced in these trials is international law ofgeneral application which everyone in the world is generally bound to observe. On no otherbasis can the trials be regarded as judicial proceedings, as distinguished from politicalinquisitions.30There is some historical precedent from which an international norm regardingprocedural rights for accused war criminals might be derived.  The Nuremberg Tribunalsprovide a good starting point,31 as further refined by the International Criminal Tribunals forYugoslavia and Rwanda.32 Perhaps the most recent embodiment of the requirements of theinternational law of war is to be found in the procedures of the not-yet-operationalInternational Criminal Court established by the Rome Statute.The evidentiary rules used at Nuremberg and adopted by the Tokyo tribunals weredesigned to be non-technical, allowing the expeditious admission of “all evidence [theCRS-633 See Wallach, supra note 30, at 860.34 See id. at 871-72.35 See id. at 852 (citing VIRGINIA MORRIS & MICHAEL SCHARF, 1 AN INSIDER'S GUIDE TO THEINTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 9-10 (1995)).36 See Wallach, supra note 30, at 869; Application of Homma, 327 U.S. 759, 760 (1946) (Murphy,J. dissenting).37 See, e.g., Burns v.  Wilson, 346 U.S. 137 (1953)(declining to review merits of habeas corpuschallenges to convictions by court-martial).38 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept andObstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. 107-56, (2001).39 Ex Parte Quirin, 317 U.S. 1, 27 (1942)(citing 50 U.S.C. §38, which has since been repealed).Tribunal] deems to have probative value.”33  This evidence included hearsay, coercedconfessions, and the findings of prior mass trials.34 While the historical consensus seems tohave accepted that the war crimes commissions were conducted fairly,35 some observers arguethat the malleability of the rules of procedure and evidence could and did have some unjustresults.36  For some, the perception is that “victors’ justice” was all that was sought.Assuming that ordinary procedural and evidentiary rules are unsuitable for the task, itwill likely be necessary to adapt or develop a more fitting set. The necessity to protect civilliberties will be seen to require balancing with the need to protect vital national securityinformation and the public safety.  Possible Challenges.  Although federal courts do not have jurisdiction to review thedecisions of legislative courts, a defendant sentenced by a military commission may file a writof habeas corpus claiming a violation of the law of war, the Constitution, relevant statutes,or military regulations. A challenge based on an interpretation of the law of war is not likelyto succeed. Because of Congress’ power to define and punish violations of international law,and due to national security implication, courts are likely to defer to the political branches.Due process claims are also unlikely to succeed.  Case law demonstrates the difficulties sucha challenge would face.37 A U.S. citizen charged with aiding and abetting the foreign terroristsmight be able to argue that the charges against him amount to treason, for which theConstitution contains explicit limitations. Aiding and abetting a hostile (but lawful) force,however, may be distinguishable from conspiring to commit a war crime.The broad delegation of authority to convene military commissions makes a statutoryclaim unlikely to succeed.  A defendant could argue that Congress, by passing comprehensiveanti-terrorism legislation that does not authorize trial by military commission,38 implicitlywithholds such authority.  A similar argument failed in Ex Parte Quirin.  However, theSupreme Court noted that the Espionage Act of 1917 and the Articles of War explicitly keptopen concurrent jurisdiction with military tribunals.39 A last option would be to argue that the military commission violated its own rules.  Forsuch a challenge to succeed, the court would have to find that the military reviewing authoritycommitted an error which probably affected the verdict.  If the appeal were successful, thecourt would likely remand the case to the military authorities for retrial.

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Trying Terrorists as War Criminals

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