As the United States and its coalition partners execute diplomatic, financial, and military responses to the September 11 terrorist attacks, the legal options regarding the trial of members of the al-Qaeda terrorist organization are being increasingly discussed. ¹ As many as 1,000 individuals have been detained by law enforcement authorities in this country in response to the attacks.² Reports that some of them may have been directly involved in the September 11 conspiracy or were planning to carry out similar terrorist acts add a particular urgency to the discussion.³ Attorneys have been appointed for, or employed by, those who have been detained, and legal proceedings likely have begun with respect to their detention. At some point in the near future, the executive branch will likely have to decide whether to release them, deport those that are subject to deportation, or charge them with a crime. With respect to the last option, the government will have to decide what charges to bring against them and in what court system.

Some commentators have suggested that members of al-Qaeda apprehended in or extradited to the United States should not be treated as ordinary criminal defendants, but instead tried in military courts, either by regular courts martial or by specially constituted military commissions. Media reports indicate that this issue is already being considered by, among others, the staff of the Senate Committee on the Judiciary.⁴

From the government's perspective, the use of the military justice system to try al-Qaeda members involved in terrorist acts on behalf of a hostile foreign power offers several advantages. In particular, trials before military tribunals need not be open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of individual cases and avoiding the disclosure of highly sensitive intelligence material, which would have to be made public in an ordinary criminal trial. A number of government officials have indicated that the previous trials of terrorist defendants, including the 1993 bombers of the World Trade Center, resulted in damaging disclosure of information on intelligence sources and methods, investigative techniques, and other matters that have made it more difficult for the United States government to uncover and prevent such plots in the future.⁵

Under the Uniform Code of Military Justice (UCMJ), and military court decisions interpreting it, the accused enjoy extensive due process protections, but their rights are not coextensive with the protections civilians enjoy in normal criminal trials held in the United States. Military tribunals are not required to offer the same due process rights guaranteed by the Constitution in Article III, the Fourth, Fifth, Sixth, and Fourteenth Amendments, as well as those articulated in various judicial decisions interpreting those constitutional provisions. For example, the precise contours of the Fourth Amendment exclusionary rule that flowed from Mapp v. Ohio, 367 U.S. 643 (1961), and later cases do not apply in military courts, although military court decisions have imposed an analogous exclusionary rule in courts martial. It is, of course, possible for the President to incorporate all of the due process protections of the UCMJ and related legal precedents, or a great number of them, into any specially constituted military tribunal. Nevertheless, any al-Qaeda defendant will almost certainly object to the jurisdiction of a military commission and argue that he is entitled to trial in a non-military court with exactly the same protections as other civilians.

As a result, the constitutional basis for the use of military commissions, or even of regular courts martial, to try members of al-Qaeda must be carefully considered. Although the practical benefits of military trials may be obvious, their use with respect to individuals not regularly enrolled in a military force represents a clear departure from normal legal processes in the United States and from some of its most fundamental judicial traditions. In addition, there could be diplomatic difficulties and other costs associated with trying al-Qaeda terrorists by military tribunal. If intelligence sources and methods would not be compromised by a public trial and the risk of additional terrorist actions were not substantial, the United States might prefer a public trial so that the rest of the world can evaluate the strength of the evidence against each defendant.

For the foregoing reasons, this memorandum is not intended to present an argument for or against the use of military tribunals to try al-Qaeda terrorists; instead, it merely presents an analysis of the constitutionality of that option. In the end, only the executive branch will possess the necessary information to weigh the potential harm to America's intelligence apparatus and other risks of a long public trial against the foreign policy ramifications or other potential effects of a military trial.

Brief Summary

It has long been recognized that the Constitution, in Justice Arthur Goldberg's much-quoted phrase, "is not a suicide pact,"⁶ and that the government enjoys extraordinary power during wartime. As Chief Justice William Rehnquist has noted:

In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts in favor of order--in favor of the government's ability to deal with conditions that threaten the national well-being.⁷

At the same time, limiting the due process rights, particularly the right of public trial by jury, of individuals accused of capital crimes is a grave and extraordinary measure involving procedures that the Supreme Court has approved in only very limited circumstances. In particular, the only case in which the Supreme Court explicitly upheld the constitutionality of trying individuals, who were apprehended in the United States and who were not regularly enlisted in the armed forces of the United States or some other power by military commission, was decided during the summer of 1942--a time soon after the entry of the United States into the World War II.

When the Supreme Court rendered this decision, Ex parte Quirin ,⁸ the United States was engaged in a formally declared war, a point noted by the Court. To date, Congress has not declared war with respect to the armed conflict between the United States and al-Qaeda's primary state sponsor, Afghanistan's ruling Taliban; and there appears to be no immediate plan to do so. This raises difficult questions regarding whether America is nevertheless in a state of war for certain constitutional purposes, and if so, with whom it is at war. We believe the Supreme Court would defer to Congress's determination of those issues in a formal declaration of war and uphold the trial of saboteurs and spies, like those in Quirin, who violate the laws of war on behalf of a hostile foreign power.

Although our focus in the rest of this memorandum is on the question of whether al-Qaeda members apprehended in the United States, or extradited to the United States, can be tried by military commission in the absence of a declaration of war, it is likely that the Supreme Court would allow the trial overseas by military commission of al-Qaeda members captured in Afghanistan, regardless of how it would treat defendants in this country. As discussed more fully later in this memorandum, international law would permit such treatment. Moreover, the Supreme Court has approved the use of military commissions to try enemies captured overseas for violations of the laws of war.⁹ In addition, the Court has suggested that a broad range of individuals (including "civilians") may be subject to military justice in an actual theater of operations.¹⁰

Whether the United States may constitutionally subject individuals associated with the al-Qaeda network to trial by military commission in the United States in the absence of a formally declared war is far less clear. There certainly is some support, based upon the applicable rules of international and constitutional law, for the proposition that a formal declaration of war by Congress would, in the current situation, be unnecessary to such proceedings, because a "state of war" between the United States and Afghanistan can nevertheless be said to exist. Much of Quirin's reasoning does not depend on a formal declaration of war, and there are other historical precedents that would support the creation of military tribunals to try al-Qaeda terrorists.

At the same time, it has long been recognized that the authority available to the government in time of an "undeclared" or "limited" war is less expansive than that available during a declared war. Moreover, in the past 50 years, the Supreme Court has become more protective of civil liberties, and it is less likely to defer as extensively to the political branches in time of war or national emergency as it once did. Thus, heavy reliance on historical examples from the 19th century or one decision from the mid-20th century is ill advised.

In the absence of a formal declaration of war, we simply cannot predict with a high degree of certainty which way the Supreme Court would rule. Because the matter is in doubt, we believe that Congress should formally declare war before the United States resorts to the use of military commissions, so as to place the use of such extraordinary measures on the best possible legal footing.

Legal Precedents Regarding
the Trial of Civilians in Military Courts

In the past, the United States has treated individuals accused of terrorism as civilians, subject to trial in the federal courts established under Article III of the Constitution, with the full application of the Bill of Rights, including the right to a public trial by jury and the Federal Rules of Criminal Procedure. This was the case, for example, following the first attack on the World Trade Center in 1993. A total of 15 terrorists, including Sheikh Omar Abdel Rahman, an Egyptian cleric and leader of the radical group al-Gama'a al-Islamiya, were tried and convicted in the course of three trials in federal court in New York. Moreover, such treatment may have been constitutionally mandated, since civilians are not ordinarily subject to military justice and must be tried for federal crimes in Article III courts.

This point was made clear by the Supreme Court shortly after the Civil War (during which civilians were subjected to trial by "military commission" in certain cases) in the landmark case of Ex parte Milligan.¹¹ There, the Court ruled that military justice "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed."¹²

The Quirin Case represents a narrow exception to the rule adopted by the Milligan Court that would permit individuals who are not enlisted in a regular military force to nevertheless be subjected to military law, and to be tried by military commissions. In that case, the Supreme Court ruled that eight Nazi agents, who had secretly entered the United States to undertake acts of sabotage, could be tried by a military commission established, pursuant to statute, by President Franklin D. Roosevelt.¹³ The Court carefully distinguished Milligan , noting that the defendant there was "a non-belligerent, not subject to the law of war." In Quirin, by contrast, the individuals were considered to be "belligerents" or "combatants,"¹⁴ although not formally enlisted in the German Wehrmacht. Thus, they were classified as "unlawful belligerents," subject to trial in military commissions for violations of the laws of war.

It is this authority under which Osama bin Laden and his associates could be subjected to trial by military commission. There are, however, two conditions that must be satisfied before such proceedings can be employed. First, the accused individuals must be properly classifiable as "unlawful combatants," a status that only arises in the context of an "armed conflict." Second, the United States must itself be in a "state of war."

Are Members of Al-Qaeda "Unlawful Combatants"?

Under the traditional rules of international law, individuals who engage in warlike activity, but who do not enjoy the immunities associated with enlistment in a lawful military organization, are treated harshly. As explained by Emmerich de Vattel, a leading 18th century scholar of international law who had a profound influence on the Framers of the U.S. Constitution:

When a nation or a sovereign has declared war against another sovereign by reason of a difference arising between them, their war is what among nations is called a lawful war, and in form; and as we shall more particularly shew the effects by the voluntary law of nations, are the same on both sides, independently of the justice of the cause. Nothing of all this takes place in a war void of form, and unlawful, more properly called robbery, being undertaken without right, without so much as an apparent cause. It can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules of wars in form. It may treat them as robbers. The city of Geneva, after defeating the attempt of the famous Escalde hung up the Savoyards, whom they had made prisoners, as robbers who had attacked them without any cause, or declaration of war. Nobody offered to censure this proceeding, which would have been detested in a formal war.¹⁵

Whether, under current international norms, an unlawful combatant may be killed out of hand, as Vattel suggests, is highly debatable.¹⁶ Nevertheless, it is clear that such individuals--both substantively and as a procedural matter--are not entitled to the same rights as lawful combatants (who must be treated as prisoners of war), or of non-combatants.

" Lawful Combatants." The question of who is an "unlawful combatant" depends, in the first instance, on who qualifies as a "lawful combatant." Although irregular or "guerrilla" forces are not automatically excluded from this category, in order to be treated as "lawful combatants" or "lawful belligerents" (entitled to be treated as such under the laws and customs of war), a group must meet the following basic requirements according to the governing Hague Convention:

1. They must operate under a recognizable command structure;
2. Their members must wear a uniform or other "fixed distinctive emblem recognizable at a distance";
3. Their members must carry arms openly; and
4. They must conduct their operations in accordance with the laws and customs of war.¹⁷

The al-Qaeda organization, although it may or may not satisfy the first requirement, obviously fails to meet the last three. As a result, its members may be treated as "unlawful combatants" under international law.

Similarly, under United States domestic law, al-Qaeda's members also may be considered to be "unlawful combatants." The United States became a party to the Hague Convention (IV) on January 26, 1910, and the definitions contained in that instrument are fully applicable under U.S. law. They also are entirely consistent with the working definition of "unlawful combatant" adopted by the Supreme Court in Quirin. There, the Court explained that "unlawful combatants" are individuals who associate themselves with an enemy of the United States and who:

[d]uring time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property.¹⁸

The members of al-Qaeda who carried out the September 11 attacks, and their surviving compatriots, clearly entered the United States out of uniform and for the purpose of committing hostile acts involving the destruction of life and property here.¹⁹ The critical question, however, is whether they acted as enemies of the United States during "time of war."

Does a State of War Exist?

International Law

Under both international and domestic law, the laws of war apply from the beginning of an international armed conflict until its conclusion.²⁰ There is little doubt that, as an international law matter, an armed conflict now exists between the United States and, at a minimum, the Taliban regime in Afghanistan, and that this conflict has existed at least since September 11, 2001.

This assessment is true even though the actual individuals who carried out the September 11 attacks appear to have been members of the al-Qaeda terrorist network. Al-Qaeda operates freely in Afghanistan with the knowledge, blessing, and support of the Taliban authorities. It controls a number of military bases in that country, and recent reports suggest that al-Qaeda may actually be the senior partner, vis-à-vis the Taliban, in controlling Afghanistan.²¹ Significantly, al-Qaeda forces are engaged together with Taliban forces in fighting the Northern Alliance, a loose coalition of resistance fighters. Moreover, the Taliban's most elite military unit, the 55th Brigade, is said to be comprised mostly of al-Qaeda members.²²

There clearly is an identity of interest and action between al-Qaeda and the Taliban sufficient to justify the United States in characterizing the attacks of September 11 as an "act of war" and to justify a military response. Here, an analogy may be drawn to the response of the United States to the depredations of the Barbary pirates, operating out of Tripoli, in 1802. At that time Congress, on February 6, 1802, authorized the President to use force, including all "acts of precaution or hostility as the state of war will justify, and may, in his opinion require." Moreover, America's NATO allies have accepted this characterization and have, accordingly, taken action to "operationalise" Article 5 of the North Atlantic Treaty, which requires that an "armed attack" against one member of the alliance is to be considered an attack on all.²³

The fact that the United States has not chosen to declare war on Afghanistan, the Taliban, or al-Qaeda does not change the conclusion under international law that a state of war exists. International law has long recognized that "a formal declaration is not necessary to constitute a state of war,"²⁴ and, in particular, that an armed attack creates a state of war without the necessity of the defending state declaring war. Again, to quote Vattel: "[h]e who is attacked and makes only a defensive war, need not declare it, the state of war being sufficiently determined by the declaration of the enemy, or his open hostilities."²⁵

Consequently, as a matter of international law, the United States is at war and would be fully justified in treating the al-Qaeda members it encounters (and any Taliban forces who do not behave in a manner so as to qualify as lawful combatants) as "unlawful combatants," subject to proceedings before a military court.

U.S. Domestic Law

Whether a "state of war" can be said to exist between the United States and the Taliban/al-Qaeda as a matter of U.S. domestic law, however, is a more difficult question.

Although the Quirin Court made clear that a "state of war" was necessary before individuals arrested in the United States could be subjected to trial by military commission, it did not specifically address the question of how this state of war was to be brought about. The text of the Constitution, however, does specifically address this issue--it grants to Congress the power to "declare war."²⁶ By that phrase, the Constitution's Framers understood the power to create a state of war between the United States and another power, for they carefully distinguished this power from the power to "make" war, i.e., to use military force, which is vested in the President as Chief Executive and Commander in Chief of the armed forces.²⁷ This division of authority made eminent sense, since, unlike the use of armed force, a formal declaration of war worked a number of important legal changes (permitting, for example, the expulsion or internment of enemy aliens and the seizure of their property) more appropriate to the legislative, rather than the executive, branch.

The actual meaning of this constitutional provision, however, became a matter of dispute almost immediately among the Founding generation itself. For example, in 1793 James Madison and Alexander Hamilton clashed, in the "Helvidius/Pacificus" debate, over whether President Washington had the power, on his own authority, to issue a proclamation of neutrality with respect to the war between Britain, her allies, and Jacobin France. These early disagreements included the question of whether a declaration of war was necessary for any U.S. military action. During the conflict between the United States and the Barbary Pirates, for instance, the Jefferson Administration evidently took the position that a declaration by Congress was necessary before the United States could seize Algerian vessels on the high seas. Alexander Hamilton took particular umbrage at this view, writing that a state of war "between two nations is completely produced by the act of one--it requires no concurrent act of the other." He further noted that the Constitution did not incorporate such a rule, claiming that "[t]he framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience. . . . [W]hen a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary."²⁸

Hamilton's view, at least for certain purposes, prevailed. The Supreme Court recognized very early that some form of a "state of war" could exist without a formal declaration by the United States.²⁹ Barely 10 years after the Constitutional Convention, a naval war erupted between France and the United States--the so-called Quasi-War. In two cases involving the disposition of ships captured by the U.S. Navy during this conflict, the Supreme Court acknowledged that the United States could wage a limited war, which was not based on a formal declaration, but was instead governed by several federal statutes. It made clear, however, that a limited war brought only restricted war-related powers into play. As explained by Justice Chase in Bas v. Tingy:

Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects and in time. If a general war is declared, its extent and operation are only restricted and regulated by the jus belli, forming a part of the law of nations; but if a partial war is waged, its extent and operation depend on our municipal [domestic] laws.³⁰

Similarly, as Justice John Marshall explained in Talbot v. Seeman :

The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed. ³¹

Thus, although the United States government can only obtain all of the potential "war powers" available to it under the Constitution through a formal declaration of war, it may nevertheless exercise some lesser measure of that power during a partial or limited war.³² With respect to any particular power, the test articulated by the Supreme Court is whether it is necessary or "actually applicable" to the level of hostilities Congress has authorized. A reasonable argument can be made that this lesser measure includes the right to subject unlawful combatants to trial by military courts, because the laws of war dealing with unlawful combatants are so basic to any level of hostilities--dealing with the questions of who may lawfully take part in a conflict, and how they must be treated upon capture or defeat--that they always apply when the United States is engaged in an armed struggle. This would support the legality of subjecting unlawful combatants, such as the members of al-Qaeda, to trial by military courts where Congress has authorized hostilities, even though it has not formally declared war.³³

Nevertheless, subjecting civilians--even as unlawful combatants--to military justice, and particularly to the type of military commission at issue in Quirin, is an extraordinary measure in recent times. Military commissions were used in such conflicts during the early- to mid-19th century. In 1862, for example, 37 Dakota Sioux Indians were executed in Minnesota. These individuals were tried before a five-member military commission for the massacre of settlers along Minnesota's western borderlands.³⁴ Yet, there are relatively few instances of such proceedings since the 1860s. Quirin represents the only instance in which the Supreme Court specifically approved, in the face of a constitutional attack, the use of military commissions in the United States to try individuals not otherwise subject to military justice. Moreover, in the years after Quirin was decided, the Court returned to a far more circumspect attitude toward the government's ability to employ military justice vis-à-vis individuals not actually enrolled in military service. In Reid v. Covert (1952),³⁵ for example, the Court ruled that the civilian dependents of armed service members, even when overseas, could not be subjected to military courts, noting that:

the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language of Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.

Moreover, the fact remains that the Quirin Court itself addressed a situation that involved a formally declared state of war. Following Hitler's declaration of war on the United States on December 11, 1941, Congress immediately declared that a state of war existed between the United States of America and the government of Germany, in addition to authorizing the President to use "the entire naval and military forces of the government to carry on war against the Government of Germany." This fact was noted by the Quirin Court in its decision, in particular with respect to its discussion of the constitutional issues presented by that case:

The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.³⁶

Citing other opinions from World War I and II, Chief Justice Rehnquist recently wrote that "[w]ithout question the government's authority to engage in conduct that infringes civil liberties is greatest in time of declared war."³⁷ Thus, it is possible that the Court would have reached a different conclusion in 1942 if Congress had not invoked the full war powers available to the United States, under the Constitution as well as the law of nations, through a formal declaration of war. Although Congress, in its Joint Resolution of September 18, 2001, has invoked a broad range of the war powers of the United States, authorizing the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001," it has not formally declared a state of war to exist.

Perhaps even more important than the precise differences between the current situation and that in 1942 is that the Supreme Court has become far more protective of civil rights and civil liberties in the past 50 years. It can even be said that it views the protection of civil rights and civil liberties as its special and unique role in the national government and the federal scheme. The Pentagon Papers case is an example of how much more protective of civil liberties the Court was in 1971 than it was earlier in the century. The national security risk posed by the disclosure of a classified history of America's involvement in Vietnam was probably far greater than that posed by journalists and pamphleteers opposed to World War I. Nevertheless, the Court refused to defer to the judgment of the executive branch in 1971 and created a standard that was either impossible for the government to meet (in the case of two concurring justices) or was at least much more difficult to meet.³⁸

Indeed, Chief Justice Rehnquist ends his book on civil liberties in wartime by contrasting the modern Court with earlier judges who seemed to adopt the Latin maxim, Inter arma silent leges: In time of war the laws are silent. His concluding remarks have an independent significance given his role on the High Court.

[T]here is every reason to think that the historic trend against the least justified of the curtailments of civil liberty in wartime will continue in the future. It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the court on the basis for the government's claims of necessity as a basis for curtailing civil liberties. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.³⁹

Given the evolution of the Supreme Court's exercise of authority, we believe some justices of the Supreme Court today might not reaffirm Quirin even if the facts were identical to that in 1942. This may also render earlier historical precedents of limited value in predicting which way the modern Court would rule.

Despite this evolution in the Supreme Court's independent role, we believe a majority of the Court today would feel constrained to follow its decision in Quirin if Congress declared war on the Taliban/al-Qaeda. But the absence of a formal declaration of war might lead several justices to distinguish Quirin, even if we believe the distinction is not constitutionally significant. Modern judicial activists have discarded far more established and well-reasoned cases than Quirin. Thus, in the absence of a formal declaration of war, we simply cannot say with a high degree of certainty which way the Court would rule.

Conclusion

Although Congress has not yet issued a formal declaration of war, there is no doubt that, as a matter of international law, an armed conflict currently exists between the United States and the Taliban/al-Qaeda regime in Afghanistan. It also is clear that members of al-Qaeda have acted as "unlawful combatants." Whether they can be treated as unlawful combatants under the domestic law of the United States, and be subjected to trial by military courts or commission, however, depends upon whether a "state of war" exists pursuant to the United States Constitution.

There is very early support in the judicial precedents of the Supreme Court, actually decided during the active political careers of the Constitution's Framers, suggesting that a "state of war" can exist between the United States and a foreign power without a formal declaration of war by Congress, albeit of a limited character. Since the question of who is a lawful and unlawful combatant is central to the law of war, whenever it is applicable, it can reasonably be argued that an undeclared war is sufficient, as a matter of constitutional law, to justify the use of military commissions to try such individuals in the United States.

At the same time, the use of military courts to try non-military personnel is an extraordinary process that has been used in only very limited circumstances during U.S. history. The only direct and definitive authority permitting such trials remains the Supreme Court's decision in Ex parte Quirin. That case involved a state of formally declared war, and this point was noted by the Court as part of its ruling. Other practical questions might arise in the absence of a formal declaration of war, including with whom the United States is at war. A formal declaration of war would resolve such questions and allow the President to try al-Qaeda terrorists who have violated the law of wars in military tribunals.

In the absence of a formal declaration, we believe the correct constitutional answer is less clear, and that it is even less obvious how the Supreme Court would rule. Thus, we believe a formal declaration of war should be sought before the United States employs military courts to try al-Qaeda members.⁴⁰ This would place such tribunals, which clearly represent a departure from this country's normal legal processes and traditions, on the best possible constitutional basis.

David B. Rivkin, Jr., Lee A. Casey, and Darin R. Bartram practice law in the Washington office of Baker & Hostetler, LLC. They frequently write on constitutional and international law issues. Messers. Rivkin and Casey served in a variety of legal positions in the Reagan and Bush Administrations.