Noone, Gregory P.

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Essay: President Bush\u27s Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror

Case Western Reserve University School of Law

Case Western Reserve Journal ofInternational LawVolume 34 | Issue 22002Essay: President Bush's Military Order: Detention,Treatment, and Trial of Certain Non-Citizens in theWar Against TerrorGregory P. NooneFollow this and additional works at: https://scholarlycommons.law.case.edu/jilThis Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons.It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western ReserveUniversity School of Law Scholarly Commons.Recommended CitationGregory P. Noone, Essay: President Bush's Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War AgainstTerror, 34 Case W. Res. J. Int'l L. 253 (2002)Available at: https://scholarlycommons.law.case.edu/jil/vol34/iss2/13ESSAY: PRESIDENT BUSH'S MILITARY ORDER: DETENTION,TREATMENT, AND TRIAL OF CERTAIN NON-CITIZENS IN THE WARAGAINST TERRORISMGregory P. Noone*Not a day goes by without a reminder of the horrors of September 11,2001. America is united in its desire to hold accountable those responsiblefor those crimes. Osama bin Laden and his al Qaeda terrorist organizationhave been identified as the perpetrators of the attacks. On November 13,2001, President George W. Bush added to the arsenal of prosecutorialoptions by signing the Military Order regarding the Detention, Treatment,and Trial of Certain Non-Citizens in the War Against Terrorism.' It is clearthat the President has the authority to establish such tribunals and prescribetheir rules. The President's authority resides in his Constitutional role asCommander-in-Chief, Articles 21 and 36 of the Uniform Code of MilitaryJustice (UCMJ), which is federal law passed by Congress, and legalprecedent.2This essay is limited to an examination of the Military Order ofNovember 13th and is not a summary of opposing views. It will notattempt to point out every issue that may be contrary to standard U.S.justice practices, address the somewhat related "detainee-prisoner of war"* Gregory P. Noone, Esq. recently joined the U.S. Institute of Peace as a TrainingProgram Officer after completing over ten years on active duty as a U.S. Navy judgeadvocate. Mr. Noone's last assignment was at the Office of the Judge Advocate General,United States Navy, International and Operational Law Division, in Washington D.C. Hehas also served as a military prosecutor and defense counsel. Mr. Noone is an adjunctprofessor at Roger Williams University School of Law where he teaches International Law,U.S. Military Law and Legal Policies, and Genocide in the 20th Century. Mr. Noone wouldlike to thank Carmen Morris Twyman and Colette Rausch for their assistance and thoughtfulinput. Mr. Noone would also like to express his gratitude and appreciation to his wife forher tireless efforts. The views expressed in this essay reflect the views of the author and donot represent the views of the United States government, the Department of Defense, theUnited States Navy or the United States Institute of Peace (USIP), which does not advocatespecific policies. USIP is an independent, nonpartisan federal institution created by the U.S.Congress to promote research, education, and training on the prevention, management andpeaceful resolution of international conflicts. Dr. Diana C. Noone and Ray Caldwell editedthis essay. Written in memory of Mari-Rae Sopper, a friend and colleague.1 Military Order of Nov. 13, 2001, 66 Fed. Reg. 57831-57836 (The President Nov. 16,2001).2 See Exparte Quirin, et al. v. Cox, 317 US 1(1942).CASE W. RES. J. INT'L L.debate, or confront issues of the law of war that have been raised in the lastseveral months.CONCERNSThis author's primary concern is that the military commissions areconducted in a fundamentally fair way because the United States is aprincipled nation dedicated to the rule of law. The forums must beconducted fairly, impartially, and with transparency so that justice is doneand seen to be done. Military commissions cannot be perceived asshortcuts to obtaining convictions. Ultimately, if the commissions are seenas less than evenhanded, it could actually damage the war against terrorismby de-legitimizing American efforts and, potentially, its cause. The UnitedStates must not allow the legal use of U.S. presidential authority to bedistorted and instead, used to breed the next generation of suicide bombers.Another concern with the use of military commissions is whether the U.S.will lose its high ground if a U.S. citizen is detained and tried overseas by a"military court." Is the United States willing to make that trade off?Military commissions are not the same as courts-martial under theU.S. military justice system. Military lawyers understandably take greatpride in the military judicial system. It is not perfect - no system is - butmost familiar with the system agree that if they were accused of a crimethey did not commit, they would want to be sent to a U.S. military court-martial. The jury (or panel members) for a court-martial is one of the mostexperienced, worldly, intelligent, and vigilant in the American justicesystem. There is no reason to believe a military commission panel drawnfrom the U.S. Armed Forces would be anything less.Section 4 of the Military Order describes the Authority of theSecretary of Defense Regarding Trials of Individuals Subject to this Order.The Secretary of Defense (SECDEF) is tasked with promulgating theregulations by which the military commissions will abide. 3 Many, if notall, of the issues being raised in this essay and elsewhere, can ultimately beremedied by the Department of Defense (DOD) rules for procedure andevidence. With that said, an appropriate point of departure in developingthese rules would logically be the military justice system. For instance, anycommission's panel should include at least five members, which would beconsistent with the minimum requirement for the most serious of courts-martial - the general court-martial. If these rules are seen as fair, they willmollify the international community and can legitimately remedy some ofthe Military Order's shortcomings and at times overly broad text. On theother hand, if the regulations simply mirror the Order's language, they will3 This essay was written prior to the promulgation of the Department of DefenseMilitary Commission Order No. 1 on March 21, 2002 entitled "Procedures for Trials byMilitary Commissions of Certain Non-United States Citizens in the War Against Terrorism"(DoD MCO No. 1, March 21, 2002).[Vol. 34:253PRESIDENT BUSH'S MILITARY ORDERnot be able to perform their essential clarifying role and will likely be oflittle help in winning any hearts and minds at home or abroad.EVIDENCE AND FORUMSSome maintain that the existence of an effective and functioning court-martial system vitiates the need for military commissions. Others disagreeand argue that military commissions are necessary, primarily because of thedifficulty with evidence. It would be difficult to maintain any chain ofcustody for evidence discovered on the "battlefield," and hearsay evidencewould probably be even more difficult because many eyewitnesses may beafraid to testify against a worldwide terrorist organization such as al Qaeda.A suppression hearing is as serious at a court-martial as any other U.S.forum. The Military Rules of Evidence essentially mirror the Federal Rulesof Evidence. The military judges fiercely guard their independence, andthere is no wink and nod to the government counsel with respect to theadmissibility of evidence.Section 4 (c)(3) of the Military Order allows for the admission ofevidence that has "probative value to a reasonable person." Theadmissibility of evidence is a cornerstone of the American judicial systemthat sets the U.S. apart from the rest of the world. There must be clear rulesof evidence, and there should be at least one judge advocate with militaryjudge experience advising the commission. It must be evident that the rulesdo not change whenever it suits the United States.Others argue that the best forum for al Qaeda members is an ad hocinternational tribunal, similar to the International Criminal Tribunal for theFormer Yugoslavia (ICTY) and the International Criminal Tribunal forRwanda (ICTR). But these contrary viewpoints would agree that Americandue process standards far exceed internationally accepted standards. Boththe ICTY and the ICTR admit hearsay evidence when it is deemed relevantand reliable, as do many European criminal courts. There is no doubt thatthe lesser international standard with regard to the admissibility of evidencewould be a more powerful tool for these military commissions than themore stringent American standard.Another difficulty with a court-martial as a forum to prosecute alQaeda members is that it could only address violations of the law of war inaccordance with Article 18 of the UCMJ, which provides for jurisdictionover non-U.S. service members for such offenses. Courts-martial could notassimilate any of the federal anti-terrorist legislation, such as the murder orkidnapping of a U.S. national abroad. In all likelihood, it would take an actof Congress to adapt these Title 18 statutes, which are used in the U.S.federal courts to prosecute terrorists, for use at a court-martial. In contrast,the military commissions are specifically designed to cover internationalterrorism and its related offenses.2002]CASE W. RES. J. INT'L L.FINDINGS AND SENTENCINGSections 4 (c)(6) and 4 (c)(7) of the Order state that only a two-thirdsvote is required for conviction and for sentencing. Many jurisdictions inthe United States and around the world do not require unanimous decisions.In fact, U.S. courts-martial under the UCMJ require a two-thirds vote of thepanel (i.e. jury) in order to convict an accused in the findings phase of acourt-martial. A two-thirds vote in the sentencing phase is required as well.However, these provisions are problematic with respect to the deathpenalty, which is an obvious sticking point with the United States'European allies, as well as others. The U.S. military has had difficultyobtaining custody over U.S. service members accused of murders inEurope, despite the jurisdiction provisions of the NATO Status of ForcesAgreement. Our allies have demanded assurances that the charges will notbe referred as a capital offense (i.e. death as a possible punishment). Thisissue has also been at the core of civilian extradition problems as well.However, a U.S. court-martial that is referred as a capital case underthe UCMJ requires a unanimous vote of the panel (i.e. jury) during thefindings phase of the trial in order to continue the possibility of a deathsentence. Then, during the sentencing phase, the court-martial membersmust again vote unanimously for the sentence of death. If just one memberdoes not vote for death, the sentence is automatically adjudged as life inprison. The military commissions should follow the same procedures.Lastly, the "present at the time of the vote" language should not havebeen included in the Military Order because it may suggest to some that thecommissions are not fully sensitive to the gravity of their responsibility.The DOD rules should make it clear that when people are assigned to acommission, this service is their primary duty, and an extremely seriousone, just as it is in a court-martial. However, a provision in the rules toexcuse a member for extraordinary circumstances would be reasonable.DETENTION, CLOSED COURTS, HABEAS CORPUS, AND APPELLATEREVIEWSection 3 of the Military Order details the Detention Authority of theSecretary of Defense and re-affirms any detainee's basic human rights.However, there are two troubling omissions in this section. First, it isimperative that detained persons have a stated right to an attorney. Second,in all U.S. jurisdictions, there is a requirement to appear before a magistratein a reasonable period of time (usually one to seven days) after beingdetained. Releasing a suspect before obtaining all evidence against them isa law enforcement nightmare, nevertheless, there must be some type ofpreliminary hearing at a "reasonable" point in the process. However, inlight of the circumstances, "reasonable" certainly does not mean one week,but a hearing does need to be conducted - preferably earlier rather thanlater - in order to justify detention.[Vol. 34:253PRESIDENT BUSH'S MILITARY ORDERThe Order's Section 4 (c)(4) allows the military commissions to limitaccess or close the courts when it is necessary for the protection ofclassified information. This is not unreasonable and, in fact, is done innational security cases regularly, both here and abroad. However, a closedcourt needs to be a legitimate exception rather than the rule.Section 4 (c)(8) describes the appellate review process as including thepresident or SECDEF. The military has an appellate review process that iseffective and ultimately ends at the U.S. Supreme Court. The military'shighest appellate court, the Court of Appeals for the Armed Forces(CAAF), is comprised of civilian judges appointed by the president. Theaccused appearing before military commissions will need a right of appeal,and using CAAF as the first level of appellate review would strengthen thecredibility of the process.Another cornerstone of the U.S. judicial system is the concept ofhabeas corpus (i.e. seeking relief from the courts). However, Section 7(b)(2) eliminates any such relief. A practical suggestion that would buildinternational and national support is to designate CAAF to review habeascorpus issues, detention orders, and rulings that close courts from thepublic, as well as act as the first level of appellate review.CONCLUDING THOUGHTSThe new DOD rules also need to establish the burden of proof asbeyond a reasonable doubt, the concept of innocent until proven guilty, theright not to incriminate oneself, the right to hire defense counsel of one'sown choosing, and the right to present evidence in accordance with thesame rules that government prosecutors use. The United States should beprepared to look to the ICTY and the ICTR for guidance. Both tribunalsallow the identity of witnesses to be withheld from the accused, less thanunanimous votes, and the protection of national intelligence used asevidence. The standard of proof is often lower than American courts, andthe United States should make it very clear that it is modeling some of theDOD rules on accepted international legal practice.Hopefully, some of the suggestions and comments made throughoutthis essay would strengthen the integrity and legitimacy of thesecommissions and their work, as well as prevent future legal historians fromdebating any perceived negative effects of military commissions on theAmerican justice system for years to come. These issues can, and in alllikelihood, will be alleviated by the dedicated military and civilian lawyerswho, at this writing, are hard at work developing the rules of procedure,evidence, and administration that will apply to the military commissions.However, until such rules are released, critics and champions alike shouldpause before offering either unqualified support or condemnation.2002]

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Essay: President Bush\u27s Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror

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