T5 B18 Civil Liberties 2 Of 2 Fdr- All Press Reports-reference Materials In Fdr- 1st Pgs For Reference- Fair Use 299

The Military Tribunals on Trial Aryeh Neier A'r ~he many defects of President Bi /rder for military commissions to try suspected al-Qaeda members or supporters is that it lumps together at least four categories of persons who have distinct sets of rights under either domestic or international raw. The four categories of persons subject to trial by military commissions under the President's order are: (1) prisoners of war captured in Afghanistan; (2) unlawful combatants arrested in Afghanistan or elsewhere in the world outside the United States; (3) illegal aliens in the United States or aliens who came to the United States legally —as with student or visitor visas—but with the alleged purpose of engaging in terrorism; and (4) legal aliens with permanent resident status who are accused of engaging in terrorist acts. As written, the order violates, in different ways, the rights of all four categories; it recalls Clemenceau's famous comment about the Dreyfus case that "military justice is to justice as military music is to music." Fortunately, public debate over the order has been far more extensive than it has been over the many other violations of rights by the Bush administration since September II.1 In consequence, the President's order is being modified by Defense Department regulations and Justice Department practice. These devej^^nts demonstrate that even at a ti 3n a commencement speaker at .iversity is booed off the stage for giving a talk about constitutional rights,2 and when only one member of the US Senate voted against sweeping federal legislation abridging civil liberties,3 it is possible for rights advocates —along with some of the officials within the federal bureaucracy itself— to take on an overwhelmingly popular president and force him and his administration to back away from draconian measures. The first two categories of people subject to trial—prisoners of war and unlawful combatants arrested outside the United States—derive their rights from international law. The essential difference between the two is that prisoners of war engage in open, announced combat in accordance with the customs of war. Unlawful combatants, on the other hand, attempt to conceal their 'The violations include secret detentions of thousands of aliens, secret proceedings against them before immigration courts, Justice Department authorization of electronic eavesdropping on conversations between lawyers and their clients, and new antiterrorist legislation that permits authorities to detain noncitizens indefinitely without meaningful judicial review. Egan, "In Sacramento, a IT'S Questions Draw the Wrath f' /owd," The New York Times, December 21, 2001, reporting that Janis Besler Heaphy, publisher of The Sacramento Bee, was driven off the stage at California State University in Sacramento for questioning the government's response to terrorism. Senator Russell Feingold, Democrat of Wisconsin, was the lone senator to vote against the USA PATRIOT Act. February 14, 2002

activities. They include those who disguise themselves as civilians as well as spies, saboteurs, and terrorists. Under international law, in particular the Geneva Conventions, both categories may be tried before military tribunals. It is true that there is no mechanism for international enforcement of the Geneva Conventions other than public pressure. But the conventions set forth clear legal standards that the US has agreed to observe, and failure to do so will be seen as a violation of fundamental international law. The Third Geneva Convention of August 12,1949, ratified by the United

uniforms should not prevent those captured in combat from being recognized as prisoners of war. Whether they are Afghans, Pakistanis, Arabs, or of some other nationality is immaterial. It is the kind of combat in which they were engaged that determines their rights. As written, President Bush's order does not allow a defendant to be represented by counsel of his own choice, only to have an attorney provided to him. Article 105 of the Third Geneva Convention, on the other hand, states that "the prisoner of war shall be entitled ... to defense by a qualified advo-

A soldier from the US Tenth Mountain Division escorting al-Qaeda suspects from Shibergan prison in northern Afghanistan to a staging area near Kandahar, December 29, 2001

States Senate on July 6, 1955, defines prisoners of war as: (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, ' fulfill the following conditions: (a) that of being commanded a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (Article 4) J.n Afghanistan, neither Taliban fighters nor members of the Northern Alliance have worn uniforms. Therefore the requirement of a "fixed distinctive sign" can't be met literally; but since most of these combatants were not attempting to disguise themselves as civilians pretending to be other than what they were, the lack of

cate or counsel of his own choice." Apparently, this conflict with the laws of war is being rectified by regulations drafted by the Defense Department. The New York Times has reported that "under the draft regulations, defendants would have military defense lawyers appointed for them but would also be able to hire civilian lawyers."4 President Bush's order explicitly prohibits the right of appeal, providing only for "submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the secretary of defense if so designated by me for that purpose." By contrast, Article 106 of the Third Geneva Convention requires that Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so. Here too, the draft regulations are reported to modify the President's order. As the Times reported, One administration official said that after the verdict and sentencing by the tribunal, which is to be 4Neil

A. Lewis, "Rules on Tribunal Require Unanimity on Death Penalty," The New York Times, December 28, 2001.

composed of at least five uniformed officers, a separate threemember panel would review the decisions. The appeal panel would accept arguments and pleas from the defense lawyers and would then make a recommendation to the secretary of defense.5 This is a step in the right direction, but it does not meet the standard of Article 106, which would give prisoners of war the same right as American soldiers to take their appeals to US civilian courts after they exhaust their remedies within the military justice system. It remains to be seen, moreover, whether the regulations will also address such issues as the rights of a prisoner of war under the Geneva Convention to be tried by a tribunal which provides "essential guarantees of independence and impartiality" (Article 84); the right to call witnesses (Article 105); the right to confer with his attorney in private (Article 105); and the right not to be coerced into admitting guilt (Article 99). There is also, according to Article 87, the right not to be "sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts." This last right, of course, sets an important limit on the use of the death penalty. J. hough the terms of President Bush's order could apply to prisoners of war, it appears that its main purpose is to provide a means of bringing to justice unlawful combatants such as those who conspired to blow up the US embassies in East Africa and to hijack planes and use them as weapons on September 11, 2001. The order gives the President exclusive authority to determine that a person "is or was a member" of al-Qaeda; has "engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor"; or has "knowingly harbored" such persons. This order is dangerously sweeping. For example, an Irish-American immigrant who participates in a fundraising event for widows and orphans of those killed in the struggle in Northern Ireland could be hauled before a military tribunal for aiding or abetting international terrorism. No standards for making such determinations are provided in the order, which explicitly prohibits recourse to any court in order to question the President's unilateral decisions. Here again, the order runs afoul of the Third Geneva Convention. Though the convention's purpose is only to protect prisoners of war, it makes the question of whether someone in a doubtful case is entitled to such status subject to determination "by a competent tribunal." Until that has happened, "such persons shall enjoy the protection of the present Convention" (Article 5). That is, a suspected al-Qaeda terrorist captured in combat 'Lewis, "Rules on Tribunal Require Unanimity on Death Penalty." 11

Chapter 5 Civil Liberties

A concise way of stating the argument so far is this: Nothing dictates or requires the use of the metaphor of war to suggest and justify the steps we should take after September 11. Whether we use that metaphor or the less accessible but more revealing division of terrorism into almost a dozen categories of threat, several of which are new to us, is a matter of pragmatic choice. In the final analysis, what we should be doing is reviewing, skeptically, what is on our menu of choices and then choosing not what is popular but what is most likely to be effective in protecting our security in the short run and in the long run. The metaphor of war makes this more difficult. It tends to obscure the differences among the threats we face and to distract attention from a careful analysis of: what we can do; what the essential roles of other nations are; and what mixture of desired and undesired effects is likely for each of our choices. An Overview This picture still leaves out one critically important dimension of choice. Even what is effective in protecting the safety of American citizens and their property may be unwise because of its effects on the historic set of arrangements which have preserved our democratic liberties. A more complete picture of what bears on our choices can be captured in a simple diagram, Figure 5.1.

ASIL

The American Society of International Law

The American Society of International Law Task Force on Terrorism

Terrorism and Migration Joan Fitzpatrick Jeffery & Susan Brotman Professor of Law, University of Washington

October 2002

The Task Force on Terrorism, established by then-ASIL President Arthur Rovine in 2001, is co-chaired by Ruth Wedgwood, Edward B. Burling Professor of International Law and Diplomacy and Director of International Law at the Paul H. Nitze School of Advanced International Studies and Professor of Law at Yale Law School and by Anthony D'Amato, Leighton Professor of Law, Northwestern University School of Law.

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Strengthening America by Defending Our Liberties An Agenda for Reform

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As Prepared for Delivery Remarks By Al Gore November 9, 2003 FREEDOM AND SECURITY Thank you, Lisa, for that warm and generous introduction. Thank you Zack, and thank you all for coming here today I want to thank the American Constitution Society for co-sponsoring today's event, and for their hard work and dedication in defending our most basic public values. And I am especially grateful to Moveon.org, not only for co-sponsoring this event, but also for using 21st Century techniques to breathe new life into our democracy. For my part, I'm just a "recovering politician" - but I truly believe that some of the issues most important to America's future are ones that all of us should be dealing with. And perhaps the most important of these issues is the one I want to talk about today: the true relationship between Freedom and Security. So it seems to me that the logical place to start the discussion is with an accounting of exactly what has happened to civil liberties and security since the vicious attacks against America of September 11, 2001 - and it's important to note at the outset that the Administration and the Congress have brought about many beneficial and needed improvements to make law enforcement and intelligence community efforts more effective against potential terrorists. But a lot of other changes have taken place that a lot of people don't know about and that come as unwelcome surprises. For example, for the first time in our history, American citizens have been seized by the executive branch of government and put in prison without being charged with a crime, without having the right to a trial, without being able to see a lawyer, and without even being able to contact their families. President Bush is claiming the unilateral right to do that to any American citizen he believes is an "enemy combatant." Those are the magic words. If the President alone decides that those two words accurately describe someone, then that person can be

HEARING OF THE SENATE COMMITTEE ON THE JUDICIARY SUBJECT: CRIMINAL TERRORISM INVESTIGATIONS AND PROSECUTIONS LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C. WITNESSES: CHRISTOPHER WRAY, CHIEF OF THE CRIMINAL DIVISION, DOJ PATRICK FITZGERALD, UNITED STATES ATTORNEY, NORTHERN DISTRICT OF ILLINOIS PAUL MCNULTY, UNITED STATES ATTORNEY, EASTERN DISTRICT OF VIRGINIA TIME: 10:03 A.M. EOT DATE: TUESDAY, OCTOBER 21, 2003

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SEN. ORRIN HATCH (R-UT): Good morning. I want to welcome everyone to the first in a series of Judiciary Committee hearings that Senator Leahy and I, and others on this committee, are organizing to examine the adequacy of the federal laws designed to protect the American public against acts of terrorism on U.S. soil. The first responsibility of government is to protect its citizens. The Judiciary Committee has the special responsibility to see that our nation's laws and law enforcement network is up to the challenging task for thwarting terrorist attacks. I want to thank my colleague, Senator Leahy, for his cooperation and support in planning these important hearings. We are committed to working together to ensure that the committee examines a number of important issues relating to our country's war on terrorism. As we announced several weeks ago, the committee's inquiry will focus on the adequacy of federal laws to help prevent and respond to acts of terrorism against the United States, whether additional tools, reporting obligations and oversight may be needed, and the implications to security, privacy and civil liberties of current laws in any new proposals. We have tentatively scheduled our next hearing for November 5th. That hearing will focus on how civil liberties have been affected by counterterrorism activities. And while we must act decisively to identify, stop and punish potential terrorists, we must be vigilant to respect traditional American civil rights and liberties. Over the recess, Senator Leahy and I may conduct field hearings to examine issues of local and national concern relating to the war on terrorism. When we return next year, we expect to schedule additional hearings. Senator Leahy and I welcome any suggestions from other members on topics that should be addressed, and information that the committee may need to conduct its inquiry. Let me also state that as part of this oversight inquiry, Senator Leahy and I plan to invite relevant witnesses to appear before the committee to address important issues, including Attorney General Ashcroft, FBI Director Mueller, Department of Homeland Security Secretary Ridge, and other appropriate officials. The administration has told me that it welcomes these hearings and will cooperate fully with the committee's inquiry.