Carne, Greg --- "Military Order: A terrible swift sword: terrorism, military tribunals and the rule of law" [2001] AltLawJl 108; (2001) 26(6) Alternative Law Journal 302

• A terrible swift sword

A terrible swift sword

GREG CARNE^[*] discusses terrorism, military tribunals and the rule of law.

Following the 11 September 2001 terrorist attacks in the United States, Congress and President Bush have implemented several legislative and executive measures to respond to an ongoing terrorist threat.^[1] The most controversial of these measures is a Military Order issued by President Bush as Commander in Chief of the United States Military Forces, which provides for the detention and trial of non-United States citizen suspects before military commissions, in place of civilian courts.^[2] The Military Order recites the rhetorical and legal foundations of a nation at war^[3] and emphasises the exceptional circumstances of current events.^[4] The Order is based on a procedure last sanctioned by the United States Supreme Court for the World War Two trial of eight German saboteurs who secretly entered United States territory.^[5]

The Order sweeps aside criminal law norms of reasonable suspicion, trial process and civil rights for non-United States citizens believed to be involved in terrorist offences.^[6] This reconstruction of justice is boldly explained as ‘it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States District courts’.^[7] The Order provides a framework of an overwhelming legal response for the detention and trial of terrorist suspects, freed from the inconvenience of constitutional guarantees.^[8]

Section Two is pivotal to the operation of the Order. Non-US citizens are defined as subject to the Military Order where the President determines that there is ‘reason to believe’ that the person is or was (a) a member of the al Qaida organisation, (b) has engaged in, aided or abetted or conspired to commit acts of international terrorism or acts in preparation therof threatening, causing or having as their aim to cause injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy, or (c) has knowingly harboured one or more of these individuals, and that it is in the interests of the United States that such a non-citizen be subject to the Order. A broad and flexible series of circumstances accordingly exists for the making of the Presidential determination. The Secretary of Defense is empowered upon a Presidential determination to detain non- citizens within or outside of the United States.^[9] The Order then mandates that a trial of such persons must proceed before a military commission, able upon conviction to impose potential sentences of death and life imprisonment.

A military commission trial is to be conducted according to a series of broad discretionary orders made by the Secretary of Defense which significantly enhance the flexibility, speed and secrecy of proceedings and the likelihood of conviction, whilst substantially diminishing the capacity to conduct a defence, obtain a fair trial and secure an impartial review of conviction and sentence. A military commission sits as trier of both fact and law at any time and any place. Conviction and sentence is permissible on the concurrence of two-thirds of its members present at the time of the vote. The rules of evidence are abandoned in two fundamental respects. Firstly, evidence can be admitted if determined to be of probative value to a reasonable person, removing the usual constraints on unreliable or illegally obtained evidence. Secondly, when information is handled, or access to it or admission into evidence is sought for the important purposes of challenging prosecution claims in the conduct of a defence, such information is to be dealt with in ‘a manner consistent with the protection of information’ where it is classified or otherwise protected by law from unauthorised disclosure. The conduct of defence lawyers is itself to be determined by order or regulation of the Secretary of Defense. So drastic are the measures that trial by military commission will fall short of normal United States military justice system standards.^[10]

Proceedings under the Order are emphatically exclusive and final. Military tribunals are given exclusive jurisdiction over individuals subject to the Order which also purports to remove access to, remedies from, and proceedings in, United States Federal^[11] and State courts, foreign courts and international tribunals for redress and review. Any implication from the Order of procedural or substantive rights in favour of persons the subject of a determination, or of persons with a legal interest in proceedings, is specifically excluded. Other detention and trial options in law are preserved for individuals not subject to the Order.

This unique model through which detention and trial are initiated and reviewed by final decision of the President pursuant to a military chain of command can be more fully comprehended through understanding the context in which the Order will operate. The potential for miscarriages of justice arising from these trial procedures is real, given a heightened anticipation of further terrorist attacks, which has resulted in an estimated 1000 people being detained indefinitely in the United States on immigration charges.^[12] The Justice Department also plans to interview a further 5000 people who entered the United States legally since 1 January 2000, on tourist, student or business visas.^[13] The Bush Doctrine’s association of terrorist presence within a territory with the sanction and support of terrorism also enhances the reach of the military tribunal jurisdiction beyond United States territory.

The provisions of the Military Order accordingly raise grave and perplexing issues about the legal responses to international terrorism and the dramatic erosion of liberal democratic values and the rule of law these protective measures implant. The Military Order reveals two significant attitudes in response to the terrorist crimes of 11 September. Firstly, the real risk of innocent people being detained and convicted under this extraordinary procedure is discounted. The model of justice instituted offers a mechanism for legal vengeance, and with the core legal restraints of accountability, judicial independence and review removed from it, undermines both the legitimacy of response to the threat and the integrity of government institutions involved. Secondly, the Military Order is at odds with more conventional procedures used in like circumstances. Successful domestic prosecutions in the United States have included the Oklahoma City bombing,^[14] people involved in the 1993 World Trade Centre terrorist bombings,^[15] and in the 1998 bombing of American embassies in Kenya and Tanzania.^[16]

Similarly, the use of United Nations ad-hoc International Tribunals^[17] to try people accused of crimes in international law, including war crimes of the kind contemplated by the Military Order,^[18] is another method which, consistent with United States opposition to the Rome Statute for the International Criminal Court, is implicitly rejected by the Order. It is not unreasonable to conclude that the use of military tribunals to try terrorist offences owes much to political expediency and the need to be seen to respond in a drastic fashion to a national emergency. The provisions are an extreme example of the broader and recurrent problem of reconciling national security and civil liberty. It should warn Australians against a populist adoption of draconian anti-terrorism measures that imperil the very institutions, qualities and values assaulted by terrorism.^[19]

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^[*] Greg Carne teaches Constitutional Law and International Law at the Faculty of Law, University of Tasmania, Hobart.

© Greg Carne (text)

^[1] See in particular Proclamation 7463 Declaration of National Emergency by Reason of Certain Terrorist Attacks, Federal Register September 18 2001 and the USA Patriot Act of 2001, 107th Congress 1st Session House of Representatives 3162 Public Law No 107-56.

^[2] See Military Order of 13 November 2001: Detention, Treatment and Trial of Certain Non Citizens in the War Against Terrorism. The Military Order has been subject to stringent criticism. See ‘Seizing Dictatorial Power’, New York Times, 15 November 2001; ‘A Travesty of Justice’, New York Times, 16 November 2001; ‘Terrorists ‘don’t deserve’ US judicial rights’, Australian, 16 November 2001, p.13; and ‘Bush orders secret terror trials’, Age, 16 November 2001, p.10.

^[3] For example, s.1(e) of the Order states that: ‘To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals’.

^[4] For example, s.1(g) of the Order states that ‘I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that the issuance of this order is necessary to meet the emergency’.

^[5] See Ex Parte Quirin et.al [1942] USSC 135; 317 US 1 (1942). The German enemy saboteurs were charged with violation of the laws of war; relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy; spying; and conspiracy to commit each of these offences: [1942] USSC 135; 317 US 1, 8 (1942). Six of the saboteurs were subsequently executed following conviction by military tribunals and two were sentenced to long-term imprisonment.

^[6] The USA Patriot Act of 2001 provides expansive definitions of terrorism: see s. 802 (definition of domestic terrorism) and s.808 (definition of Federal crime of terrorism).

^[7] Military Order, s.1(g).

^[8] On the constitutional framework for this point, see Tribe, Laurence American Constitutional Law, 3rd edn, Volume 1, Foundation Press, New York, 2000, pp.298-300.

^[9] The length of detention under the Order appears indeterminate. Section 3, the Detention Authority of the Secretary of Defense specifies no time limits, and s.3(e) merely allows the Secretary of Defense to prescribe ‘other conditions’.

^[10] Anne-Marie Slaughter, Professor of International Law, Harvard University, Media interview, Lateline, ABC, 21 November 2001.

^[11] This is a contentious matter, likely to be challenged in the United States Supreme Court. In Ex parte Quirin et al, the United States Supreme Court observed: ‘We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war’: [1942] USSC 135; 317 US 1, 45-46 (1942). The court also considered it unnecessary for the present to determine the scope of Presidential power as Commander in Chief to create military tribunals without the support of Congressional legislation: [1942] USSC 135; 317 US 1, 29 (1942).

^[12] See ‘Secrecy cloaks US detentions’. Age, 16 October 2001, p.12 and ‘Trapped by fear and suspicion’, Age, 27 November 2001, p.10.

^[13] See ‘Bush to Subject Terrorism Suspects to Military Trials’, New York Times, 14 November 2001; ‘Proposed US military tribunals under fire’, Media report, Lateline, ABC, 21 November 2001.

^[14] United States v McVeigh [1998] USCA10 1002; 153 F.3d 1166 (1999).

^[15] United States v Salemah 856 F.Supp 781 (1994) (US District Court); 2001 US App LEXIS 17685 (US Court of Appeals).

^[16] United States v Bin Laden et al 156 F. Supp 2d 359 (2001) and 146 F.Supp 2d 373 (2001).

^[17] The existing examples being the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, established under United Nations Security Council resolutions. On 12 September 2001, the UN Security Council adopted Resolution 1368, which unequivocally condemned the terrorist attacks of 11 September 2001.

^[18] Section 1(f) of the Order refers to ‘violations of the laws of war and other applicable laws’. Both the Former Yugoslavia Tribunal and the Rwanda Tribunal are empowered to prosecute war crimes: see Articles 2 and 3 of the Statute of the International Tribunal for the Former Yugoslavia and Article 4 of the Statute of the International Tribunal for Rwanda. Articles 1 and 8 of the Rome Statute of the International Criminal Court will also confer jurisdiction on the Court in respect of war crimes.

^[19] See Kirby, M. ‘Australian Law — After September 11, 2001’, Speech To Law Council of Australia, 32nd Legal Convention, Canberra, 11 October 2001. The Commonwealth Attorney-General, the Hon. D Williams, has indicated that ASIO will be given new powers: ‘New Counter-Terrorism Measures’, Attorney-General’s News Release, 2 October 2001; Interview with Hon. D Williams, ‘More powers for ASIO’, The World Today, ABC Radio, broadcast, 3 October 2001; ‘Anti-terror plan unveiled’, Age, 3 October 2001, p.1; and Interview with Hon. D. Williams, ‘A-G defends new anti-terrorism laws’, Lateline, ABC, 27 November 2001.