Oregon State Bar Bulletin — NOVEMBER 2002

A Principled Approach
Doing justice in the war on terrorism
By Jim Noteboom & Aaron Noteboom

Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished, or we must leave the defeated to judge themselves…. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.

—Justice Robert Jackson,
opening statement,
Nuremberg Tribunals1

More than half a century after Justice Jackson offered those prophetic words, the United States is once again faced with the challenge of bringing to justice a captured enemy. We would do well to heed his warnings.

The task is complicated by the fact that rules that we now rely on to guide our conduct were developed for a different sort of war — a war between nations, with soldiers in uniform, meeting on a battlefield as they had done for centuries. The 'war' on terrorism involves non-state actors, dispersed worldwide, in a loose network seeking not the defeat of armies but the spread of terror through acts that we have typically conceived of not as acts of war, but as crimes.

The law of war, now often referred to as the law of armed conflict (LOAC), is the part of international law that regulates the conduct of armed hostilities. It has two primary sources — customary law, which arises out of the conduct of nations over centuries, and treaty law, which frequently reflects customary law. Treaty law is generally divided into two branches — The Hague law, which deals mainly with methods and means of warfare, defining such things as lawful weapons, ammunition and targets, and Geneva law, which concerns the protection of people involved in war (prisoners of war, wounded and sick, civilians).

Military Commissions
In this context, on Nov. 13, 2001, the Bush administration announced that the president would exercise the seldom-used power of the presidency to establish military commissions2 to try captured Al Qaeda and Taliban detainees. There was an immediate reaction across both the United States and the international community, with cries of 'victor’s justice' and 'kangaroo court.' Several concerns were raised about the commissions, ranging from the right to due process, admission of evidence, independence of the commissions, closed proceedings and the right to habeas corpus — to the possibility of a less than unanimous vote for inflicting the death penalty. Critics questioned the need for military commissions and suggested as alternatives the federal court system, traditional military courts-martial, the newly formed International Criminal Court, or international tribunals.3

On March 21, 2002, Defense Secretary Donald Rumsfeld signed Military Commission Order No. 1, establishing the rules under which the military commissions would operate.4 The rules dealt with many, but not all, of the public’s concerns. The order provides that each commission will consist of a presiding officer (a lawyer) and three to seven members, all of whom will be military personnel. Commission members act as the jury and are responsible for determining whether the accused is guilty beyond a reasonable doubt or not guilty, as well as determining appropriate sentences. A guilty verdict requires a two-thirds majority of the members, while a conviction and sentence of death require a unanimous verdict.

The presiding officer acts as the judge and is responsible for the conduct of the trial, admits or excludes evidence based on whether the evidence would have 'probative value to a reasonable person,' and has the authority to close the proceedings. The proceedings will be open to the public to the 'maximum extent possible' except when necessity dictates that the presiding officer close the proceedings. Grounds for closing the proceedings include protecting classified or other protected information, and ensuring the physical safety of witnesses and other participants.

The prosecution presents the accused with the charges in English and, when appropriate, in the accused’s own language. The commissions have jurisdiction over law of war violations and 'all other offenses triable by military commissions.' The accused is presumed innocent until proven guilty and may enter into plea agreements.

Defense counsel is charged with zealously defending the accused both at trial and on appeal 'without regard to personal opinion as to the guilt of the [a]ccused.' The accused may not represent themselves, but will, at all times, be represented by appointed military counsel of their choice. The accused may hire an additional civilian attorney who has been determined to be eligible for access to information classified as 'secret' or higher. However, neither the civilian attorney nor the accused is guaranteed access to sensitive classified materials. The accused is entitled to access to any other evidence that the prosecution intends to introduce at trial or is exculpatory in nature, and he or she may introduce witnesses and evidence on his or her own behalf. The accused does not have to take the stand, but if he or she does, is subject to direct and cross-examination. All witnesses testifying are placed under oath and are subject to direct and cross-examination.

On a finding of guilty, the accused is entitled to have his or her case reviewed in a quasi-appellate process. A three-member panel reviews the case and either remands for further proceedings or forwards to the secretary of defense with a recommendation. The secretary of defense can then remand the case, forward the case to the president or make a final decision (provided the president has granted the secretary that authority). The final level of review is the president. Only the president and the secretary of defense have final decision-making authority.

Legitimate questions can be raised about the lack of judicial review, potential abuses of closed sessions, evidentiary standards and other attributes of the commissions. However, military lawyers and officers take their duties seriously. The military has gone to great lengths over the last 30 years to create independent defense counsel and jurors free from command influence. Assuming the good faith of the participants, a fair trial can be achieved under the commission rules.

Will Trials Be Held?
The more troubling question relates to the many detainees who may never be brought before a tribunal. Proving that crimes were committed will be difficult, even under the somewhat relaxed evidentiary standards for the commissions. The Bush administration will, understandably, not want to bring cases in which there is a likelihood of an acquittal. Accordingly, most detainees will probably simply continue to be held in confinement, and only the strongest cases will be tried.

The second, and more important, reason that few trials will probably be held has to do with the legal status of prisoners of war (POWs) and other detainees. Unfortunately, the much-heralded establishment of military commissions created the presumption among the public that each detainee will receive a trial. Historically, the vast majority of POWs are never tried for crimes. Indeed, most POWs have never committed a crime. It is not illegal for a lawful combatant to engage in mortal combat. It takes a criminal act (e.g., summary execution, rape, feigning surrender, or fighting as an unlawful combatant) before criminal charges can be brought.

Under the law of war, prisoners can be held until the end of the conflict and then must be repatriated. That may be one of the reasons that the administration is so reticent to classify Taliban and Al Qaeda members as POWs (restrictions on interrogation of POWs may be another5). But this may well be a war without end. There is no state or central authority to surrender and end the war. We will be at war until the president decides we are not. This raises the prospect of U.S. custody over an ever-increasing number of detainees for the indefinite future. POWs are not entitled to trials under the Geneva Convention, except for crimes committed while in captivity. Therefore, until the United States declares victory in the war on terrorism, detainees potentially face life imprisonment. This scenario is, frankly, far more troubling than the possibility of miscarriages of justice by military commissions.

The problem could easily become messier if the war spreads to include offensive actions against Iraq, Iran or other sovereign nations or the capture of terrorists who are citizens of key U.S. allies. The United States has often criticized other nations for detaining large numbers of people indefinitely without hearing or trial. Unless the United States deals with detainees in a principled way that can be articulated and defended, the high moral ground will be in jeopardy.

In addition, from a strategic point of view, it has been clear from the beginning that the United States cannot win this war by itself. Building a coalition of nations is the only possible route to victory. Widespread belief that the United States is not treating detainees in an appropriate way will make coalition-building much more difficult.

Finally, maintaining support and resolve on the home front is also critical. The American people must believe not only that the cause is just, but also that we are pursuing it in a just way. Public support for the war in Vietnam eroded as the public watched widespread use of napalm, bombing of villages and other actions that may have been legal, but didn’t seem right.

Meting justice to potentially thousands of detainees will not be easy. The logistics of trying large numbers of war criminals has proven unworkable in other forums. Consider the situation in Rwanda. Currently more than 100,000 prisoners await domestic trial for crimes of genocide in Rwanda. The local courts are inundated, and most defendants are expected to die in prison before they ever have a trial.6 The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) have not fared much better. Since 1996, the two tribunals have spent a combined $1.2 billion7 to conduct a total of 42 trials, resulting in 36 convictions.8 Together the Yugoslavian and Rwandan tribunals account for about 10 percent of the regular U.N. budget.9 These statistics do not bode well for the new International Criminal Court, also formed under the auspices of the United Nations.

Trying cases such as those from Afghanistan present unique prosecution challenges. The scene of the crime is often a battlefield in an ongoing war, and battlefields, by definition, are chaotic places. Prosecutors will have to deal with such things as preservation of battlefield crime scenes, battlefield chain of custody, death of witnesses in combat, large numbers of relatively anonymous detainees, protection of national security interests, trying members of an ongoing terrorist organization, and risks to ongoing military operations.

Developing a Principled Approach
Several issues need to be considered when developing a principled approach to handling the detainees.

First, if this is truly a war, then who should be considered a POW needs to be fairly determined. From a strictly legal perspective, most current detainees probably do not meet the Third Geneva Convention standard for POWs. Taliban members, particularly the foot soldiers, come pretty close. The Geneva Convention requires that to be classified as POWs, combatants must: either be a member of the state’s regular army or be commanded by a person responsible for subordinates (i.e., in an established chain of command); wear fixed, distinctive insignia recognizable at a distance; carry arms openly and obey the laws of war. Article 5 of the Third Convention provides that when there is any doubt about whether a person is entitled to POW status, the person will be treated as a POW until status has been determined by a competent tribunal. Most Taliban members, other than those senior members with significant ties to Al Qaeda, should probably be accorded POW status either as a member of Afghanistan’s regular army or as an organized irregular army.

Second, many tribunals besides military commissions are available for the trial of war criminals. The U.S. Institute of Peace, an independent, non-partisan 'think tank' established by Congress, recently published a report identifying nine different possible forums, including military commissions.10 A clearly articulated policy detailing the factors to be considered in the selection of the appropriate forum would help answer questions about when and why a particular forum is appropriate.

Third, this is not just America’s war. In particular cases, other countries may be better suited to hold or try detainees or both. Trying Taliban members in Cuba presents enormous logistical challenges — the necessary witnesses and physical evidence may all be located in Afghanistan. There may come a time when the Afghan government will be capable of holding and trying those captured. The Taliban were one of the world’s most oppressive regimes long before September 11 and committed unspeakable criminal acts on their own people. The Afghan people have a definite interest in seeing Taliban and Al Qaeda members tried.

Fourth, sooner or later we have to deal with the repatriation question. Holding everyone until we all agree that the war on terrorism is over is probably not a viable option. The war may go on for decades. At some point, we may be able to declare portions of the war over, such as the war in Afghanistan, and repatriate at least some people. If we invade other countries, such as Iraq, the problem will quickly compound itself.

Fifth, referring to our current military operations as a 'war on terrorism' may be a convenient way to encapsulate a complex threat, but it creates problems of its own. Terrorism is a method of conducting war just as is guerilla or naval warfare. Wars and the laws that govern them typically focus on states or armed groups, not methods of war. Terrorism, as with any method of war, will never be 'defeated.' As a result, a legal obligation to release prisoners may never be triggered. The problem is further complicated to the extent it assumes we can agree on who are terrorists. Already, states have seized the opportunity to label dissident groups as terrorists, whether they are Falun Gong, Chechens, Kurds or Palestinians, thereby justifying their own actions and aligning their positions with those of the United States. From a legal perspective it would be more accurate to denominate the current conflict as a war against Al Qaeda and the states that support it.

Finally, to some extent the war on terrorism is a new paradigm for war, and the tools for meting out justice may need to be modified for new circumstances. The paradigm began to shift with the bombing of a Berlin discotheque by Libyan operatives in 1985 and the U.S. retaliatory bombing of Tripoli in 1986. Codified laws of war such as the Geneva Conventions are derived from customary law developed over centuries to deal with conventional warfare. The war on terrorism is really a hybrid in which conventional military forces are used to deal with a situation that has most of the attributes of an ongoing international criminal conspiracy. Suspects are now called 'detainees.' Foot soldiers are called 'unlawful combatants.' Members of the ongoing conspiracy, if accorded POW status under the Geneva Convention, are bound to give only name, rank, date of birth and serial number if interrogated. Perhaps it is time for a fifth Geneva Convention to deal with the unique attributes of this very unconventional war.

Jim Noteboom, a Bend attorney with Karnopp, Petersen, Noteboom, Hansen, Arnett & Sayeg since 1977, specializes in federal Indian law. He also has 39 years’ military service, most recently as the National Guard liaison and adjunct instructor for the Defense Institute of International Legal Studies in Newport, R.I. His son, Aaron, is a third-year law student at the University of Oregon, following four years in the Marine Corps. He is currently an officer in the Oregon Army National Guard. This article represents the views of the authors, not the Department of Defense. It originally was published in the OSB Civil Rights Section newsletter.

1. A complete transcript of Justice Jackson’s opening statement is available at www.holocaust-history.org/works/imt/02/htm/ t098.htm.

2. The president’s authority to authorize military tribunals resides in his constitutional role as commander in chief; Articles 21 and 36 of the Uniform Code of Military Justice (UCMJ), promulgated by Congress; and legal precedent, including the 1942 Supreme Court decision in Ex Parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed.3 (1942). A copy of the order can be found at www.whitehouse.gov/news/releases/2001/ 11/20011113-27.html.

3. Use of the International Criminal Court is problematic because only crimes committed after July 1, 2002, can be prosecuted, and terrorism as such is not one of the crimes over which it has jurisdiction.

4. The rules can be accessed at www. defenselink.mil/news/Mar2002/d20020321ord.pdf.

5. Under the Geneva Convention, a POW when questioned is bound to give only his or her name, rank, date of birth, and personal or military serial number. Convention II, art 17.

6. Genocide Justice, www.abc.net.au /news/indepth/featureitems/rwanda.htm (June 27, 2002).

7. Mary Kimani, Expensive Justice: Cost of Running Rwanda Tribunal, www.internews.org /activities/ICTR_reports/ICTRnews-Apr02. html#0409a (April 9, 2002).

8. Individual case summaries are available at www.un.org/icty/index.html and www.ictr.org.

9. Committee on International Relations, U.S. House of Representatives, 'How Well Are International Criminal Tribunals Working?' (Feb. 26, 2002), www.house.gov/international_relations/news0226.htm.

10. The report is at www.usip.org/oc/newsroom/sr78nb.html.

© 2002 Jim Noteboom & Aaron Noteboom

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