Survey of Military Law Military Commissions

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Survey of Military Law Military Commissions

• Week 5
• Lt Col Jennifer Rider

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Lets Review Status

• POW (Common Art 2 4, GPW)
• right kind of person
• Armed Forces of a party and militias/resistance
  forces
  
• Command, distinctive insignia, arms openly, LOW
• Also
• Detained Personnel (contractors, reporters,
  civilian members of air crews, persons
  accompanying the force)
  
• Retained Personnel (medics, chaplains)
• right kind of conflict
• Declared War
• International armed conflict (between two or more
  parties)
  
• Conflicts against racist regimes colonial
  domination or alien occupation (Protocol I
  expansion)
  
• Importance
• Once captured, no longer a target
• Receives combatant immunity
• Protected under Geneva Conventions
• Repatriation

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Lets Review Status

• If Im not a POW, what am I?
• Protected Person/Non-Combatant
• Civilians not taking part in hostilities, medical
  personnel, chaplains, and those out of combat
  (POWs, wounded, sick and shipwrecked)
  
• Unlawful Combatant/Enemy Combatant/Unprivileged
  Belligerents
  
• Spies, Saboteurs or civilians who take up arms
• Not entitled to POW status and may be prosecuted
  under the domestic law of the captor

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Right Person? Right Conflict?
NO
YES
POW Held until Cessation Of Hostilities Repatri
ated
Enemy Combatant Unlawful Belligerent
Combatant Immunity
Detained
LOAC Viol?
War Crime?
LOAC Viol?
War Crime?
Released to own Country for Prosecution
US Military Commission
Intl Criminal Tribunal
UCMJ Own Country
Intl Criminal Tribunal
US Civilian Court
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War Crime v. LOAC Violation

• General Def Any violation of LOAC
• Nexus between act and some kind of conflict
• Grave Breaches v. Other Violations
• Owning State v. International Tribunal
• International law generally places obligation
  only on states
  
• LOAC different
• Individual Responsibility
• Command Responsibility
• Punishment Generally Speaking
• International Tribunals
• Ad Hoc (WWII, Rwanda, Yugolsavia)
• Permanent (ICC)
• National Laws
• UCMJ
• Federal Statute

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Prosecution of War CrimesInternational Tribunals

• World War II
• 24 German senior leaders - Nuremberg
• 28 Japanese leaders in Tokyo before IMTs
• Thousands of trials in national courts, British
  military courts and US military commissions
  
• Defined by the UN Tribunal
• Intl Mil Tribunal (Nuremberg)
• Crimes against Peace
• Violations against Laws and Customs of War
• Crimes against Humanity
• Conspiracy as well
• Post WWII
• Significant codification of specific
  international rules pertaining to trial and
  punishment of those committing grave breaches
  of the conventions
• Vietnam - US soldiers tried by US courts-martial
  
  
• Internal and civil wars outside grave breached
  provisions of 1949 convention
  
• No effort to prosecute Cambodia, Uganda and
  Persian Gulf War (1990) violators

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Prosecution of War Crimes

• Other International Ad Hoc Tribunals
• ICT for former Yugoslavia
• 1993 Un Sec Council established first
  international war crimes tribunal since WWII
  
• ICT had authority to prosecute for grave breaches
  and serious violations of international
  humanitarian law
  
• Statute of ICTY established command resp
• Zejnil Delalic et al.
• ICTR (Rwanda)
• 1994 internal armed conflict
• Prosecute genocide and other serious violoations
  of international humanitarian law

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Prosecution of War Crimes

• ICC - established by Rome statute
• Permanent international tribunal with
  jurisdiction over individuals accused of war
  crimes
  
• Grave Breaches, Serious Viol (listed)
• Attacks on UN personnel engaged in peacekeeping
• Grave Breaches Crime (1949 Conv)
• Serious Felonies
• International Armed Conflict required
• Victim must be a protected person
• Simple Breaches
• Some internal armed conflict
• Viol of Common Art 3 (minimum standards)

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But What About This Thing Called a Military
Tribunal???

• State Responsibility
• Enact laws to ensure punishment for grave
  breaches
  
• Search out and Prosecute those who commit grave
  breaches
  
• Suppress simple breaches
• Provide accused persons safeguards of proper
  trial and defense
  
• Pay compensation for grave breaches committed by
  US military members
  

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• US Laws
• 1996 NDAA defined war criminal to include those
  indicted by ICTY and ICTR
  
• Amended extradition laws to allow US to extradite
  to the ICTY and ICTR
  
• 1996 War Crimes Leg created federal
  jurisdiction over those who commit a grave breach
  on US national or member or armed services and
  over US nationals and mil members who commit
  grave breaches
• Also allows prosecution for violations of CA3 and
  limited other international laws.
  
• Congress provided general courts-martial and
  military commission w/requisite authority to try
  and punish war criminals effectively (UCMJ Art 18
  and 21)

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US Prosecution

• UCMJ Art 18 GCMs also have jurisdiction to try
  any person who by the law of war is subject to
  trial by a military tribunal and may adjudge any
  punishment permitted by the law of war
• UCMJ Art 21 These provisions do not deprive
  military commissions or other military
  tribunals of concurrent jurisdiction
  
• Result Concurrent Jurisdiction
• UCMJ Art 36 President may prescribe rules for
  both

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Military TribunalsHistorical Perspective

• Military Commissions historically used to
  prosecute enemy combatants who violate laws of
  war
  
• Last time US used MC process was WWII
• US v. Quirin (pre-UCMJ Articles of War)
• 8 Nazi saboteurs captured in NY FL
• 1942 Proclamation by President All persons who
  charged with sabotage, espionage, hostile acts
  or LOAC violations shall be subject to the law of
  war and the jurisdiction of military tribunals
• Ct unanimously affd US authority to detain
  captured enemy combatants until end of
  hostilities
  
• Also upheld Presidents ability to try detainees
  by military commission
  

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Quirin Contd

• President set out jurisd and procedures in 1942
  proclamation
  
• Followed by commission and not in conflict
  w/Articles of War
  
• Accuseds in lawful custody
• Articles of War recognized military commission
  as appropriate tribunal for trial of offenses
  against LOW not ordinarily tried by CM
  
• By LOW, lawful combatants are subject to capture
  and detention as POWs
  
• Unlawful combatants are subject to trial and
  punishment by military tribunals for acts that
  render their belligerency unlawful
  
• Subjects properly categorized and tried as
  unlawful combatants
  
• Constitution does not require offenses against
  LOW be tried in civil courts
  

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Right Person? Right Conflict?
NO
YES
POW Held until Cessation Of Hostilities Repatri
ated
Enemy Combatant Unlawful Belligerent
Combatant Immunity
Detained
LOAC Viol?
War Crime?
LOAC Violation?
Released to own Country for Prosecution
US Military Commission
Intl Criminal Tribunal
US Civilian Court
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Military Tribunals Since 2001

• Nov 2001 President authorized DoD to create
  military commissions to try terrorists who were
  not US citizens
  
• DoD GC issued 9 military commission instructions
• Fed Ct v. Military Commission
• Mil Commission balances fair trial v. natl
  security/intelligence information
  
• Mil Commission takes into account unique
  battlefield environment
  
• No particular procedures/details
• Presumption of Innocence, BRD, Panel 3-7
  officers, Defense able to cross-examine, call
  witnesses and present evidence, no adverse
  inference from silence, nothing said to DC can be
  used against accused, open proceedings (except
  natl security info), review of record by
  3-member review panel

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Tribunals since 9/11

• Rumsfeld v. Padilla June 2004
• Arrested during material witness warrant in
  conjunction with 9/11 attacks
  
• Pres issued and order designating Padilla as
  enemy combatant and that he be detained in
  military custody
  
• HC to challenge detention
• Wrong party no jurisiction
• Rasul v. Bush June 2004
• Prisoners (2 Australians/12 Kuwaitis) captured in
  Agfhanistan and held at GTMO
  
• Challenged detention never combatants against
  US or engaged in terrorist acts, never been
  charged with wrongdoing or provided access to
  counsel or courts
• DCt had jurisdiction to hear case
• HC authorized by persons claiming to be held in
  custody in violation of the law of the US. This
  extends to aliens held in a territory over which
  US exercises jurisdiction but not ultimate
  sovreignty

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Tribunals since 9/11

• Hamden v. Rumsfeld June 2006
• Hamden captured in Afghanistan (Yemeni National)
  and held at GTMO
  
• President deemed Hamdan eligible for trial by
  military commissions for unspecified crimes
  
• One year later charged with conspiracy to commit
  offenses triable by MC
  
• Asserted
• No authority to try him because conspiracy is not
  a violation of the law of war
  
• Procedures adopted to try him violate basic
  tenets of military and international law

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• Govt argued
• Detainee Treatment Act withdrew jurisdiction from
  Sup Ct Denied
  
• Ct should abstain from review Denied (Gov has
  no countervailing interest that would prevent
  courts from exercising their congressionally
  conferred jurisd)
• UCMJ/DTA at MOST acknowledge a general
  presidential authority to convene mil tribunals
  in circumstance where justified under
  Constitution and laws (incl LOW)
• Military Commission lacks power to proceed
  because its structure and procedures violate both
  the UCMJ and 1949 GC

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• Article 36 not complied with
• Procedural rules for CM and MC must be uniform
  insofar as practicable
  
• Presidents inpracticability determination
  insufficient to justify variance
  
• Violates GC
• including prohibition on the passing of
  sentences without previous judgment by a
  regularly constituted court affording all the
  judicial guarantees recognized as indispensable
  by civilized peoples
• MC can only be regularly constituted only is fome
  practical need explains deviations from
  court-martial practice
  
• Acc must, absent disruptive conduct or consent,
  be present for trial and privy to the evidence
  against him
  
• RESULT??? Military Commission Act of 2006 and
  Military Commissions Manual

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Military Tribunals Since Hamdan

• 2006 Military Commissions Act Response to
  Hamden
  
• Established procedures governing the use of
  Military Commissions to try alien, unlawful
  combatants
  
• Engaged in hostilities against the US
• For violations of LOW and other offenses triable
  by military comission
  
• Established jurisdiction over any alien unlawful
  combatant define as
  
• Engaged in hostilities or purposefully and
  materially support hostilities against the US or
  its co-belligerents AND NOT a lawful enemy
  combatant OR
• A person determined to be an unlawful enemy
  combatant by a CSRT or other competent tribunal
  
• Prosecution drafts charges
• Convening Authority refers to trial (Referral is
  act directing MC be convened and detailing
  members)
  

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• CA appoints the Chief Judge who then details a
  military judge to each case.
  
• MJ rules on questions of law, admissibility of
  evidence and all interlocutory questions
  
• Evidence probative value
• Evidence may not be excluded on the grounds there
  was no search warrant takes into account unique
  battlefield environment
  
• Each MC has at least 5 members
• 2/3 majority required 12 in a death case,
  w/unanimous vote ¾ for more than 10 year
  sentence
  
• Any commissioned officer eligible to be member
• Upon finding of guilt, MC may impose any
  appropriate sentence
  

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• All records must be reviewed by the Legal
  Advisors office
  
• CA takes action only after consideration of all
  matters submitted by accused and recommendation
  of legal advisor
  
• CA can mitigate sentence and dismiss charges or
  order rehearing
  
• Not appealable by prosecution
• Each case including a finding of guilty is
  referred to the Court of Military Commission
  Review established by SecDef.
  
• At least 3 appellate judges may be military or
  civilian
  
• US Ct of Appeals for DC has exclusive
  jurisdiction to determine validity of any final
  decision of MC case.
  
• Supreme Court may review by writ
• But remember the language in Hamden

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Military Commissions Manual

• January 2007
• Very similar to MCM
• Intended to ensure alien unlawful enemy
  combatants who are suspected of war crimes are
  prosecuted before regularly constituted courts
  affording all the judicial guarantees which are
  recognized as indispensable by civilized people
• Part II, Rule 103 defines unlawful enemy
  combatant
  
• Rule 201 specifically states the military
  commissions convened under the MCA shall not have
  jurisdiction over lawful enemy combatants
  
• Determination will be made by CSRT or other
  competent tribunal dispositive
  
• Rule 203 may try any offense under the MCA or
  law of war
  
• Section IV Spells out specific offense triable by
  military commission and sets maximum punishments
  
• Section II spells out procedure and Section III
  spells out evidentiary rules
  
• Protections for the accused

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Military Commissions Since 2001

• Open disclosure
• All documents available on W3
• Matthew Hicks, Australia
• First trial by MC since MCA of 2006
• March 1, 2007 charges referred
• Mar 30, 2007 convicted of material support to
  terrorism
  
• Pled guilty, non-capital offense w/PTA
• Hamdan, Round II
• Charges referred 10 May 2007
• Conspiracy providing material support to
  terrorism
  
• Currently in motions

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• US v. Khadr (Canadian Citizen)
• First case out of Ct of Mil Comm Review
• Charged w/killing US solder in Afghanistan
• MJ dismissed case in June lawful combatant
  Gov appealed
  
• Should have had POW status and other rights under
  intl law
  
• Gov Al Qaeda combatants are, by definition
  unlawful (remember status discussion?)
  
• What is unlawful MCA requires unlawful
  combatants but GTMO just calling them enemy
  combatants
  
• CSRT determined Khadr to be enemy combatant and
  an individual who was a member of, or affiliated
  with al Qaeda (MCA defines al Qaeda members into
  unlawful enemy combatant)
• Two issues
• Did MJ err in decision that CSRT determination
  insufficient to establish jurisdiction?
  
• No affd finding Khadr as an enemy combatant
  was insufficient to establish MCs jurisdiction
  
• Could MJ have reassessed CSRT decision?
• MJ should have allowed Gov to present evidence in
  support of jurisdiction
  
• CSRT determination not a pre-requisite for
  referral and MC had power to independently
  consider jurisdiction
  
• MCA says a person who OR a person
  determined by CSRT
  
• Alternative approaches
• Remanded to MJ for full hearing and determination
  on jurisdiction
  
• Fallout??? Mohammed trial mastermind of 9/11
  and fellow co-conspirators
  

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Military Commissions Today

• Current issues
• Resignation of Chief Prosecutor
• Political interference from CA a political
  appointee
  
• Investigating and drafting charges objective?
• Need for open hearings go through
  classification review process new CA pressed
  with closed hearings
  
• Placed chief prosecutor in chain of command under
  DoD GC Haynes different perspective and
  different agendas the decision to give him
  command over the fhief prosecutors office cast a
  shadow over the integrity of the military
  commissions
• New cases
• Mohammed Preferred Oct 07
• 9/11 co-conspirators Preferred Feb 08
• Conspiracy, attacking civilians, attacking
  civilian objects, intentionally causing serious
  bodily injury, murder in violation of LOW,
  destruction of property, hijacking, terrorism,
  providing material support to terrorism
• Status of Detainee at GTMO
• Lawful or Unlawful Enemy Combatants?

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QUESTIONS???