Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?
Evan J. Wallach1
Following the terrorist attacks of 11 September 2001, Presi-With this background, Section II traces the history of milident Bush issued a military order providing for trials of cap-tary commissions. The article then emphasizes the evidentiary tured members of al Qaeda and their Taliban supporters by and procedural problems associated with the post-World War II military tribunals2 under evidentiary and appellate rules similar military commission rules derived from Ex parte Quirin,5 upon to those used in military commissions during and after World which President Bush’s proposed commissions are based. War II. The thesis of this article is that these rules violate the Next, Section III discusses the legality of military tribunals Geneva Convention Relative to the Treatment of Prisoners of under current international law. Section IV then argues that War (GPW) because they do not provide an accused with the Quirin-based military commissions fail to meet current stansame rights accorded a U.S. service member charged with a dards for trying POWs and that they fail to satisfy the procesimilar offense.3 Also, the proposed rules do not meet current dural and evidentiary requirements of the Uniform Code of international law standards for trials of war criminals. As a Military Justice (UCMJ). Finally, based upon the precedent of result, any participant in a military commission trial of a person United States v. Uchiyama,6 the article concludes that participrotected by the GPW would, in turn, be guilty of a breach of pating in such a commission, when it tries a POW, violates the the GPW, a war crime under U.S. law.4 law of war.
I. Introduction A. Background
This article examines the structure and history of applicable On 11 September 2001, thousands of civilians were mursections of GPW and their application to the proposed defen-dered when armed conspirators hijacked three airliners and dants. Section I outlines the promulgation of President Bush’s used them as flying bombs to attack the World Trade Center military order, concluding that the system fails to provide ade-complex in New York City and the Pentagon in Washington, quately for those accorded Prisoner of War (POW) status. This D.C. The passengers of a fourth hijacked aircraft foiled an article then argues that members of the Taliban and possibly additional attack, but that flight ended in the deaths of the pas-certain al Qaeda members qualify for POW status under the sengers, crew, and hijackers. The President of the United States GPW as detainees of an international conflict. In this context, immediately characterized those attacks as “an act of war.”7 Section I then identifies the issues raised by America’s current Shortly thereafter, he announced that credible evidence pointed proposed use of military commissions. to Osama bin Laden, the leader of the al Qaeda terrorist group,
and members of bin Laden’s organization.8
1. Judge, U.S. Court of International Trade; Adjunct Professor, Law of War, Brooklyn Law School, New York Law School; Visiting Professor, Law of War, University of Münster; Major (JAG) U.S. Army (Inactive Reserve, until July 2003); and Webmaster, International Law of War Association, Law of War Home Page, at http:// www.lawofwar.org. J.D., Berkeley, 1976; LL.B. (International Law), Cambridge, 1981. The author dedicates this article to the memory of his father, Albert A. Wallach, 1916-2002, who served from private to captain in the United States Army from 1941 to 1946 and to the memory of U.S. Supreme Court Associate Justice Frank Murphy. The author thanks Sara Schramm of Brooklyn Law School and Raymond Cho of Columbia Law School for their research assistance with this article. Tremendous gratitude is also owed to the numerous editors at the Army Judge Advocate General’s School who challenged the author to make this a more accurate, comprehensive and complete work. The author’s views in this article represent only those of the author and not of any person with whom, or entity with which, he is or was affiliated.
Portions of this article are reprinted from the author’s previous work, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide an Outline for International Legal Procedure?, 37 COLUM. J. TRANSNAT’L L. 851 (1999). The Columbia School of Law has granted permission to reprint the article.
2 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001), available at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html; U.S. DEP’T OF DEFENSE, MILITARY COMMISSION ORDER NO. 1 (21 Mar. 2002), available at http:// www.defenselink.mil/news/commissions.html [hereinafter MCO No. 1]; Procedures for Trials by Military Commissions of Certain Non-U.S. Citizens in the War Against Terrorism, 68 Fed. Reg. 39,374-99 (July 1, 2003) (to be codified at 32 C.F.R. pts. 10-17).
3 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 3, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW]; see MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. II (2002) [hereinafter MCM].
4 MCM, supra note 3, art. 130; see secs. I.B-I.C, infra (analyzing who is entitled to prisoner of war (POW) status, and when and how this status is determined).
5 317 U.S. 1 (1942).
6 Case-35-46, War Crimes Branch Case Files, Records of The Judge Advocate General, Record Group 153 (Yokohama, 18 July 1947) (on file with author).
As al Qaeda members planned and carried out the attacks in While the Taliban equivocated, the United States engaged in America, bin Laden and his terrorist network were living in extensive diplomacy. On 7 October, with the consent of counsanctuary in Afghanistan. President Bush, characterizing the tries surrounding Afghanistan, the United States began exten-
U.S. response to those attacks as a “war on terror,”9 demanded sive air attacks on the Taliban military infrastructures and the al that Afghanistan’s ruling party, the Taliban, end that sanctuary Qaeda terrorist organization.13 By 21 December 2001, the and turn the members of al Qaeda over to American custody.10 allied coalition held in custody about seven thousand suspected On 18 September 2001, in a joint resolution, Congress, without al Qaeda and Taliban members in Afghanistan.14 declaring war, authorized military action against the Taliban.11 By the end of September, the United Nations Security Council On 13 November 2001, President Bush issued a military had also adopted two resolutions which (1) identified the order providing for the trial of non-U.S. citizens who were attacks on the United States as a threat to international peace members or culpable supporters of al Qaeda before military triand security; and (2) mandated that states “[d]eny safe haven to bunals.15 That order, and subsequent statements by the Presithose who finance, plan, support, or commit terrorist acts.”12 dent,16 Vice President,17 Attorney General,18 Secretary of Defense,19 the White House Counsel,20 and others,21 made it
1 BBC News Online, Bush Calls Attacks “Acts of War” (Sept. 12, 2001), at http://news.bbc.co.uk/hi/english/world/americas/newsid_1537000/1537534.stm (last visited Nov. 17, 2003).
2 See, e.g., President George W. Bush, Speech to the Joint Session of Congress, Washington, D.C. (Sept. 20, 2001) (“The evidence we have gathered all points to a collection of loosely affiliated terrorist organizations known as al Qaeda.”).
5 S.J. Res. 23, 107th Cong. (2001) (enacted as Pub. L. No. 1-7-40, 115 Stat. 224). In a further response to the attacks, on 26 October 2001, Congress adopted the USA Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, which addresses domestic national security issues.
6 S. Con. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc. S/RES/1368 (2001); S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., U.N. Doc. S/RES/ 1373 (2001).
7 Ian Christopher McCaleb, Bush Announces Opening of Attacks, CNN.com (Oct. 7, 2001), available at http://www.cnn.com/2001/US/10/07/ret.attack.bush/
8 US Questions 7,000 Taliban and al-Qaeda Soldiers, GUARDIAN (Dec. 21, 2001), available at http://www.guardian.co.uk/afghanistan/story/ 0,1284,623701,00.html.
9 See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001), available at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html [hereinafter Bush Order]. The Bush Order provides, in part, that individuals subject to the order include: (1) current or past members of al Qaeda; (2) individuals who “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore” that adversely affected wide United States interests; and (3) individuals who “knowingly harbored one or more individuals” described above. Id. sec. 2(A).
10 On 19 November 2001, President Bush said that the nation was fighting “against the most evil kinds of people, and I need to have that extraordinary option at my fingertips.” Elisabeth Bumiller, Military Tribunals Needed in Difficult Time, Bush Says, N.Y. TIMES, Nov. 20, 2001, at B5.
11 Vice President Dick Cheney, responding to questions following his speech to the U.S. Chamber of Commerce on 14 November 2001,
[S]poke favorably of World War II saboteurs being “executed in relatively rapid order” under military tribunals set up by President Franklin D. Roosevelt . . . . A military tribunal, he said, “guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve” . . . The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans[,] . . . is not a lawful combatant . . . . They don’t deserve to be treated as prisoners of war.
Elisabeth Bumiller & Steven Lee Myers, A Nation Challenged: The Presidential Order; Senior Administration Officials Defend Military Tribunals for Terrorist Sus-pects, N.Y. TIMES, Nov. 15, 2001, at B6.
This statement raises a serious question—can a terrorist operating under civilian cover in the United States claim POW status? Under the Hague Regulations, a spy falls outside the protection of the Geneva Convention and may be subject to the death penalty depending on the domestic law of the state where he was caught. Hague Convention IV Respecting the Laws and Customs of War on Land, Annexed Regulations, art. 29, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations].
18. According to the Attorney General, John Ashcroft,
Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution, particularly when there could be very serious and important reasons related to not bringing them back to the United States for justice. I think it’s important to understand that we are at war now.
Robin Toner & Neil A. Lewis, White House Push on Security Steps Bypasses Congress, N.Y. TIMES, Nov. 15, 2001, at A1.
clear that the tribunals were intended to follow procedural and order. While it appears that MCO No. 1 made some advances evidentiary rules similar to those used to try spies and war crim-towards fairness, including finessing the Presidential order’s inals during and after the Second World War.22 two-third’s sentencing requirement,27 it retained the World War II evidentiary rules and failed to provide a system of indepen-
Those rules, as applied between 1942 and 1947, do not meet dent appeals. Therefore, MCO No.1 confirms the Bush Adminthe current international law standards for trials of prisoners of istration’s intention to deny defendants the evidentiary rules war.23 Moreover, they are insufficient under the requirements and procedural safeguards, provided under the Uniform Code of GPW.24 The U.S. Army teaches that “treaty obligations pro-of Military Justice (UCMJ). Thus, even though MCO No.1 vide a floor of procedural rights, at least as to offenses by pris-“made concession to critics who worried that President Bush’s oners of war, that precludes military commissions in this original order . . . had codified a secret rigged system,”28 the category of cases.”25 system created still fails to provide the trial rights guaranteed to
a prisoner of war (POW) under GPW.
On 21 March 2002, the Secretary of Defense promulgated Military Commission Order No. 1 (MCO No.1),26 which pre-On 1 July 2003, the Department of Defense (DOD) issued a scribes procedures for tribunals under the President’s military series of rules and regulations concerning military tribunals.29
19. Secretary of Defense Donald Rumsfeld recognized
that the rules for military tribunals would be decidedly differently [sic] from those for civilian trials. And Pentagon officials said today that they were devising regulations that were likely to include a more flexible standard for evidence than civilian trials would accept. They said the tribunals would probably allow a conviction of a suspected terrorist on a two-thirds vote of the officers on the panel.
Steven Lee Myers & Neil A. Lewis, Assurances Offered About Military Courts, N.Y. TIMES, Nov. 16, 2001, at B10. The military order itself provides for “sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present.” Bush Order, supra note 15, sec. 4(c)(7).
1 At a meeting of the American Bar Association’s Standing Committee on Law and National Security, White House Counsel Alberto Gonzales acknowledged nearly identical provisions in the two orders. COMMITTEE ON MILITARY AFFAIRS AND JUSTICE OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, INTER ARMA SILENT LEGES: IN TIMES OF ARMED CONFLICT SHOULD THE LAWS BE SILENT? A REPORT ON THE PRESIDENT’S MILITARY ORDER OF NOVEMBER 13, 2001 REGARDING “DETENTION, TREATMENT, AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERRORISM” (2001), available at http://www.abcny.org/pdf/should_the_laws.pdf.
21. See Bumiller & Myers, supra note 17, at 6. Former Attorney General William P. Barr is credited with bringing the idea of military tribunals to the attention of the White House. He stated, “What I don’t understand about civil libertarians is, if our boys did something wrong in this conflict, they’d be tried in a military court. An al Qaeda terrorist shouldn’t have any claim to different procedures.” Robin Toner, Civil Liberty vs. Security: Finding a Wartime Balance, N.Y. TIMES, Nov. 18, 2001, at A1. A member of the U.S. military charged with war crimes would, of course, be tried under the UCMJ and its Military Rules of Evidence (MRE). As discussed below, the UCMJ and the MRE provide substantial guarantees of a fair and impartial trial. See infra sec. IV.
In his 14 November 2001 statement, see supra note 17, Vice President Cheney said that “[t]he basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans[,] . . . is not a lawful combatant . . . . They don’t deserve to be treated as prisoners of war.” Bumiller & Myers, supra note 17, at 6. The Vice President’s statement raises a serious question. Can a terrorist operating under civilian cover in the United States claim POW status? The question may be somewhat mooted, however, by the fact that any claim of status necessarily implies the claimant is a combatant captured while engaged in hostilities, but not in uniform; to wit, a spy. Under the Hague Regulations, a spy falls outside the protection of the Geneva Convention and is subject to the death penalty. Hague Convention IV Respecting the Laws and Customs of War on Land, Annexed Regulations, art. 29, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations].
2 The New York Times reported that “[a] Bush administration official with knowledge of the planning said officials had been studying the World War II cases.” William Glaberson, Closer Look at New Plan for Trying Terrorists, N.Y. TIMES, Nov. 15, 2001, at B6. “[A]s one White House official put it, ‘it’s a new reality.’ The old rules, the old legal and law enforcement cultures, have to change . . . .” Toner, supra note 21, at 1. Thus, something more effective than civilian law enforcement is necessary. According to the New York Times, “The incident that was uppermost on the minds of Bush administration officials in setting up tribunals took place in June 1942, when Nazi Germany dispatched eight saboteurs to this country to blow up war industries . . . .” Id. That incident resulted in the military commission procedures used in Ex parte Quirin, 317 U.S. 1 (1942). “‘The commission itself is going to be unique,’ said one military officer involved in the discussions. ‘It will be separate and distinct from a civilian criminal trial. It will be separate and distinct from a court-martial.’” Matthew Purdy, Bush’s New Rules to Fight Terror Trans-form the Legal Landscape, N.Y. TIMES, Nov. 25, 2001, at A1.
3 See the discussion related to the application of these rules infra notes 164-187 and accompanying text. See also the discussion related to current international standards infra notes 198-231.
4 See id. arts. 85 (“Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.”), 102. Article 102 states the following:
A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedures as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.
These trial procedure regulations retain the World War II evi-result, they still fail to meet the essential requirements for trying dence rule which states: POWs.
(d) Evidence—(1) Admissibility. Evidence shall be admitted if, in the opinion B. The POW Status of Captured Members of the Taliban of the Presiding Officer (or instead, if any and Al Qaeda other member of the Commission so requests at the time the Presiding Officer renders that If the conflict in Afghanistan is in fact an international opinion, the opinion of the Commission ren-armed conflict,32 then the coalition forces may have to treat the dered at that time by a majority of the Com-detained Taliban and possibly al Qaeda members as POWs.33 mission), the evidence would have probative The GPW was drafted, in part, to address conflicts in which one value to a reasonable person.30 state does not recognize the legitimacy of the government of
another. 34 It covers “all cases of declared war or any other
The regulations also fail to provide for a system of independent armed conflict, which may arise between two or more of the
appeals, instead tracking the procedure of MCO No.1.31 As a High Contracting Parties, even if the state of war is not recog
nized by one of them.”35 Article 4(3) of GPW includes as
25. INT’L & OPERATIONAL LAW DEP’T, THE JUDGE ADVOCATE GENERAL’S SCHOOL, U.S. ARMY, LAW OF WAR WORKSHOP DESKBOOK ch. 8, at 216 (2000), available at http:/ /www.jagcnet.army.mil/TJAGLCS. The deskbook notes the following:
In theory, [military commissions] could provide very limited evidentiary and procedural formality, see, e.g, Yamashita, 327 U.S. [1,] 18 [(1946)] and a very streamlined appeal process. Cf. Eisentrager v. Forrestal, 174 F.2d 961 (1949) (finding that German nationals, confined in custody of the U.S. Army in Germany following conviction by military commission of having engaged in military activity against the United States after the surrender of Germany, had substantive right to writ of habeas corpus to test legality of their detention) . . . . But treaty obligations provide a floor of procedural rights, at least as to offenses by prisoners of war, that precludes military commissions in this category [cases where the accused has POW status] of cases.
Id. Eisentrager was, of course, reversed in Johnson v. Eisentrager, 339 U.S. 763 (1950).
1 MCO No.1, supra note 2.
2 Id., sec. 6(F) (providing that “[a]n affirmative vote of two-thirds of the members is required to determine a sentence, except that a sentence of death requires a unanimous, affirmative vote of all the members”).
3 Katherine Q. Seelye, Government Sets Rules for Military on War Tribunals, N.Y. TIMES, Mar. 21, 2002, at A1.
4 Procedures for Trials by Military Commissions of Certain Non-U.S. Citizens in the War Against Terrorism, 68 Fed. Reg. 39,374-99 (July 1, 2003) (to be codified at 32 C.F.R. pts. 10-17).
5 Id. § 9.6(h)(1).
6 See id.; MCO No. 1, supra note 2.
7 The invasion by armed forces of one state into the territory of another, supported by massive air strikes against command, control, and communications targets equals an Article 2, international armed conflict. Thus, it activates the remainder of the GPW. This is true, even if a de facto government rules the invaded state. See Kadic v. Karadzic, 70 F.3d 232, 244-45 (2d Cir. 1995) (“[A] state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities . . . .”).
8 See GPW, supra note 3, art. 2.
9 This point was made clear during the discussions relating to the drafting of Article 2. As the Official Commentary to Article 2 notes:
The Preliminary Conference of National Red Cross Societies, which the International Committee of the Red Cross convened in 1946, fell in with the views of the Committee and recommended that a new Article, worded as follows, should be introduced at the beginning of the Convention: “The present Convention is applicable between the High Contracting Parties from the moment hostilities have actually broken out, even if no declaration of war has been made and whatever the form that such armed intervention may take.” The Conference of Government Experts recommended in its turn that the Convention should be applicable to “any armed conflict, whether the latter is or is not recognized as a state of war by the parties concerned,” and also to “cases of occupation of territories in the absence of any state of war.” Taking into account these recommendations, the International Committee of the Red Cross drew up a draft text, which was adopted by the XVIIth International Red Cross Conference and subsequently became Article 2 of the Convention . . . .
Commentary to GPW, available at http://www.icrc.org/IHL.nsf/1a13044f3bbb5b8ec12563fb0066f226/07b4dad7719e37e4c12563cd00424d17?OpenDocument [hereinafter OFFICIAL COMMENTARY TO GPW].
35. GPW, supra note 3, art. 2.
POWs “[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the The more interesting question is whether those members of Detaining Power.”36 al Qaeda captured in combat in Afghanistan and fighting as
auxiliaries to the Taliban are entitled to treatment as POWs.
Even if the Taliban was not recognized as a de facto govern-The al Qaeda member could be entitled to POW treatment ment, Article 4(3) deems members of the Taliban as protected under the following theories: (1) as a member of the Taliban combatants.37 Various U.N. Security Council resolutions armed forces; (2) an irregular adjunct to the Taliban armed directed at the Taliban before its defeat make that government’s forces; or (3) part of a levee en masse or popular uprising. de facto status clear. For example, in demanding that the Tali-ban cease providing sanctuary for international terrorists, U.N. Security Council Resolution 1267 specifically references “the 1. The Taliban and Possibly al Qaeda Are Entitled to POW territory under its control.”38 Because Afghanistan is a signa-Status Even Without Application of the Four-Part Test As Set tory of GPW,39 any interpretation of article 4(3) includes mem-Forth in Article 4 of the GPW bers of the Taliban as protected combatants even if the Taliban is not recognized as a de facto government.40 Furthermore, In determining the legal status of the Taliban and al Qaeda before 11 September 2001, the United Arab Emirates, Saudi detainees, the preliminary question often asked is whether those Arabia, and Pakistan had formally recognized the Taliban as the detainees qualify as legal combatants.42 The Bush administrade jure government of Afghanistan and entered into diplomatic tion argues that to qualify as legal combatants, the detainees43 relations.41 must meet the requirements of GPW Article 4(A)(2), which
1 Id. art. 4(3).
3 U.N. SCOR, 54th Sess., 4051st mtg., at 1, U.N. Doc. S/RES/1267 (1999).
4 Id.; see International Committee of the Red Cross, States Party to the Geneva Conventions and Their Additional Protocols, at http://www.icrc.org/Web/Eng/ siteeng0.nsf/iwpList444/77EA1BDEE20B4CCDC1256B6600595596 (last visited Nov. 19, 2003).
5 The President has apparently recognized this point. In a White House briefing, Presidential Press Secretary Ari Fleischer said: “Afghanistan is a party to the Geneva Convention. Although the United States does not recognize the Taliban as a legitimate Afghani government, the President determined that the Taliban members are covered under the Treaty because Afghanistan is a party to the Convention.” Press Release, Statement by White House Press Secretary Ari Fleischer (Feb. 7, 2002), available at http://www.us-mission.ch/press2002/0802fleischerdetainees.htm [hereinafter Fleisher Statement].
In a later expansion of that discussion Mr. Fleischer said:
Afghanistan is a party to the Geneva Convention. Although the United States does not recognize the Taliban as a legitimate Afghani government, the President determined that the Taliban members are covered under the treaty because Afghanistan is a party to the Convention.
Under Article 4 of the Geneva Convention, however, Taliban detainees are not entitled to POW status. To qualify as POWs under Article 4, al Qaeda and Taliban detainees would have to have satisfied four conditions: They would have to be part of a military hierarchy; they would have to have worn uniforms or other distinctive signs visible at a distance; they would have to have carried arms openly; and they would have to have conducted their military operations in accordance with the laws and customs of war.
The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda.
See Statement by the Press Secretary on the Geneva Convention, May 7, 2003, at http://www.whitehouse.gov/news/releases/2003/05/20030507-18.html.
1 See CNN, UAE Withdraws Recognition from the Taliban (Sept. 22, 2001), at http://www.cnn.com/2001/US/09/21/gen.america.under.attack.
2 See, e.g., Ruth Wedgewood, Prisoners of a Different War, FIN. TIMES, Jan. 30, 2002. Professor Wedgewood states,
The convention’s premise is that both parties to the conflict will obey the fundamental rules for lawful belligerency: that any fighting force must refrain from terrorizing innocent civilians and avoid masking soldiers in civilian dress, lest an adversary target innocent civilians in response.
The test is put in four parts. Lawful combatants must have a responsible commander (to ensure accountability for violations); wear a fixed distinctive sign visible at a distance; carry their arms openly; and fight in accordance with the laws and customs of war.
These requirements apply as much to regular armies as to militia forces. It is thus fallacious to suppose that the Taliban should be allowed any exemption.
require that a “[m]ember[ ] of the armed forces [of an opposing . . have[ ] a fixed distinctive sign recognizable at a distance; (c) Party],”44 as well as “[m]embers of . . . militias [or] volunteer . . . carry[ ] arms openly; [and] . . . conduct[ ] their operations corps” forming part of those armed forces45 must “(a) . . . be[ ] in accordance with the laws and customs of war,”46 require-commanded by a person responsible for his subordinates; (b) . ments otherwise known as GPW’s four-part test.
43. In a news conference on 27 January 2002, Secretary of Defense Rumsfeld was quite clear on this issue:
These are detainees.
The Convention in certain situations raises the possibility if there are ambiguities that you can have a three-person panel or tribunal to sort out those ambiguities. There are not ambiguities in this case. The al Qaeda is not a country. They did not behave as an army. They did not wear uniforms. They did not have insignia. They did not carry their weapons openly. They are a terrorist network. It would be a total misunderstanding of the Geneva Convention if one considers al Qaeda, a terrorist network, to be an army and therefore ambiguous and requiring the kind of sort that you’ve suggested.
With respect to the Taliban, the Taliban also did not wear uniforms, they did not have insignia, they did not carry their weapons openly, and they were tied tightly at the waist to al Qaeda. They behaved like them, they worked with them, they functioned with them, they cooperated with respect to communications, they cooperated with respect to supplies and ammunition, and there isn’t any question in my mind—I’m not a lawyer, but there isn’t any question in my mind but that they are not, they would not rise to the standard of a prisoner of war.
Secretary of Defense Donald H. Rumsfeld, Remarks on Ferry from Air Terminal to Main Base, Guantanamo Bay, Cuba (Jan. 27, 2002), available at http:// www.defenselink.mil/news/Jan2002/t01282002_t0127sd2.html; see also Secretary of Defense Donald H. Rumsfeld & General Richard Myers, Chairman, Joint Chiefs of Staff, Department of Defense News Brief, Washington, D.C. (Feb. 8, 2002), available at http://www.defenselink.mil/news/Feb2002/t02082002_t0208sd.html. On that same day Secretary Rumsfeld also said that:
There is a definition of what a lawful combatant is and there are four or five criteria that people look to historically. There's precedent to this, and there is a reasonable understanding of what an unlawful combatant is.
The characteristics of the individuals that have been captured is that they are unlawful combatants, not lawful combatants. That is why they are characterized as detainees and not prisoners of war. The al Qaeda are so obviously a part of a terrorist network as opposed to being part of an army -- they didn't go around with uniforms with their weapons in public display, with insignia and behave in a manner that an army behaves in; they went around like terrorists, and that's a very different thing.
It's important for people to recognize that this is a different circumstance, the war on terrorism. It requires a different template in our thinking. All of the normal ways that we think about things simply don't work.
For example, there were no armies or navies or air forces for us to go after in Afghanistan. We're going after terrorists.
See Rumsfeld, U.S. Senators Brief Media at Guantanamo Bay, United States Mission to the European Union, Jan 27, 2002, at http://www.useu.be/Terrorism/USResponse/Jan2702RumsfeldSenatorsGuantanamo.html.
In the press briefing of 8 February 2002, Secretary Rumsfeld said:
The determination that Taliban detainees do not qualify as prisoners of war under the convention was because they failed to meet the criteria for POW status.
A central purpose of the Geneva Convention was to protect innocent civilians by distinguishing very clearly between combatants and non-combatants. This is why the convention requires soldiers to wear uniforms that distinguish them from the civilian population. The Taliban did not wear distinctive signs, insignias, symbols or uniforms. To the contrary, far from seeking to distinguish themselves from the civilian population of Afghanistan, they sought to blend in with civilian non-combatants, hiding in mosques and populated areas. They were not organized in military units, as such, with identifiable chains of command; indeed, al Qaeda forces made up portions of their forces.
Id. In addition, Presidential Press Secretary Ari Fleischer stated that
[u]nder Article 4 of the Geneva Convention, . . . Taliban detainees are not entitled to POW status. To qualify as POWs under Article 4, Al Qaeda and Talilban detainees would have to have satisfied four conditions: they would have to be part of a military hierarchy; they would have to have worn uniforms or other distinctive signs visible at a distance; they would have to have carried arms openly; and they would have to have conducted their military operations in accordance with the laws and customs of war.
The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the Al Qaeda.
Fleischer Statement, supra note 40.
1 GPW, supra note 3, art. 4(A)(1).
2 Id. art. 4(A)(2).
a. The Parties to GPW Did Not Intend to Subject Regular In discussing this proposed language, the Soviet Union rep-Armed Forces and Constituent Militia and Volunteer Units to resentative said that “the working text would appear [to require] the Four-Part Test members of the Armed forces . . . to fulfill the four traditional requirements . . . in order to obtain prisoner of war status, which According to the traveaux preparitoires of Article 4, the four was contrary to the Hague Regulations.”52 The Chair proposed qualifying requirements for POW status under Article 4(A)(2) splitting the draft text of Article 4 into subparagraphs that apply only to militias, volunteer corps, and organized resistance divided “members of the armed forces” and “militias and volgroups which do not form part of the armed forces of a party to unteer corps” in order “to overcome the drafting difficulty.”53 the conflict.47 To make this distinction clear, the drafters split The Soviet response was that it was necessary to distinguish Article 4(A) 48 into two subparagraphs, Article 4(A)(1) and between “(a) The militia or volunteer corps which constituted Article 4(A)(2).49 Following extensive debate on Article 4,50 or were part of the army; [and] (b) The militia or volunteer the Rapporteur and the Secretariat proposed a working text that corps which were not part of the army. Only those groups to defined prisoners of war as “[m]embers of armed forces who which (b) related should fulfill all four conditions.”54 The rea-are in the service of an adverse belligerent, as well as members son was “that even with the suggested wording, the new sub-of militia or volunteer corps, belonging to such belligerent, and paragraphs (1) and (2) would not correspond to the Hague Reg-fulfilling [the conditions of Hague Convention IV.”51 ulation.”55 After further discussion, the Committee “deemed it
desirable” to “draft a text as close as possible to that of the Hague Regulation of 1907.”56 The resulting draft contained the
1 Id. art. 4(A)(2(a)-(d).
2 2 FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949, at 465-67 [hereinafter FINAL RECORD] (reprinting the traveaux preparitoires).
3 In the initial draft (the Stockholm Draft), what became Article 4 was Article 3. For clarity, this article refers to Article 3 in the Stockholm Draft as Article 4. For numerical comparison of the 1929 Convention, the Stockholm Draft, the working draft and the final GPW Convention see, 3 FINAL RECORD, supra note 47, at 217.
4 During negotiations, a Special Committee was formed to draft Article 4. The Special Committee’s Rapporteur described Article 4 as “the keystone of the Convention.” 2 FINAL RECORD, supra note 47, at 386 (Committee II, 30th mtg.).
He explained, among other things, that in order to coordinate the Convention with the Hague Regulations of 1907 respecting the Laws and Customs of War on Land, the Special Committee had first of all decided to insert the four conditions with which militias or volunteer corps not forming part of the regular armed forces must comply immediately after the end of sub-paragraph I of the first paragraph of Article . In order to avoid any possibility of misunderstanding, it was subsequently decided to subdivide sub-paragraph I into two separate sub-paragraphs, a new subparagraph 1 relating to members of the armed forces and members of militias or volunteer corps forming part of those armed forces and a new sub-paragraph 2 relating to members of other militias and volunteer corps which were required to fulfill the four conditions laid down in the Hague Regulations.
Id. at 387 (emphasis added).
1 3 FINAL RECORD, supra note 47, at 465-467. This debate took place at the 21st meeting of the Special Committee. Id.
2 Hague Regulations, supra note 17, art. 1. To satisfy the requirements of the four-part test, the conditions of the Convention required the following:
Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
 To be commanded by a person responsible for his subordinates;
 To have a fixed distinctive emblem recognizable at a distance;
 To carry arms openly; and
 To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination “army.”
Id. art. 1 (emphasis added).
The emphasized language makes clear the intent of Article 1, which distinguishes between militias and volunteer corps that form part of the regular armed forces from those that do not. If the intention had been to apply the four conditions to all combatants, the last sentence of Article 1 would be superfluous.
1 Id. at 466. The proposed definition differed slightly from Article 1 of the Hague Regulations Concerning the Laws and Customs of War, 1907.
2 2 FINAL RECORD, supra note 47, at 467.
3 Id. (emphasis added).
language that eventually became GPW Article 4, subpara-eventually resolved the argument by including resistance graphs (A)(1) and (2).57 One further point about GPW elimi-movements in Article 4(A)(2) only, demonstrating a stark disnates any remaining doubt regarding the drafters’ intent to tinction between Article 4(A)’s two subparagraphs.61 apply the Hague four conditions to Article 4(A)(2) and not to Article 4(A)(1)—the final form of Article 4 includes organized The Special Committee reported that “to avoid any possibilresistance movements in subparagraph (A)(2) and excludes ity of misunderstanding, . . . sub-paragraphs (A)(1) and (A)(2) them from subparagraph (A)(1).58 were created to divide regular armed forces and their constitu
ent volunteer corps and militias from independent forces[,] including resistance movements[,] and to apply the Hague con-
b. The Drafters’ Treatment of Organized Resistance Move-ditions to the latter.”62 That decision must be analyzed in light ments Demonstrates Their Intent to Distinguish Regular Armed of the considerable opposition to permitting resistance move-
Forces, and Their Constituent Militia and Volunteer Units, ments to claim POW status,63 and the ultimate compromise that from Independent Forces included them in the newly devolved subparagraph (A)(2).
In the initial draft of GPW (the Stockholm Draft), POWs The debate on this issue is found in the discussion of pro-were those persons “belonging to a military organization or to posed amendments to the Stockholm Draft. Particularly inforan organized resistance movement constituted in occupied ter-mative is a United Kingdom proposal64 to apply the Hague ritory,” provided they met the four Hague conditions, and that conditions to “partisans” and to “members of armed forces they “notified the occupying Power of [their] participation in including militia or volunteer corps,” which the other delegathe conflict.”59 This language caused such controversy that a tions unanimously rejected.65 The principal concern seems to Special Committee was appointed to consider it.60 The drafters have been command and control. The United Kingdom then
2 Id. (emphasis added).
3 GPW, supra note 3, art. 4, subpara.(A)(1) and (2). Those subparagraphs read as follows:
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the hands of the enemy:
(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 by 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.
Id. art. 4(A)(1)-(2).
58. Id. As noted by the Representative of the International Committee of the Red Cross in discussing a subsection of draft Article 4, which was eventually incorporated into subparagraph (A)(2):
The Conference of Government Experts had also . . . come to the conclusion that strict rules should be laid down governing the conditions in which civilian combatants captured by the enemy should fulfill in order to be treated as prisoners of war. Certain of those conditions had been accepted by all the Government experts without difficulty; they were the traditional contained in the 1907 Hague Convention . . .
2 FINAL RECORD, supra note 47, at 240.
1 Id. at 465.
2 Id. at 255; see infra text accompanying notes 47-58.
3 See GPW, supra note 3, art.4.
4 See 2 FINAL RECORD, supra note 47, at 387.
5 The discussion in the Special Committee of proposed subparagraph 6 of the Stockholm Draft reflects this debate. See id. at 422.
6 Id. annex 90, at 60-61.
offered a proposal to apply the Hague conditions only to military organizations or organized resistance movements in occupied territories, provided they maintained “effective command of lower formations and units,” and that the Occupying Power had been given certain notices.66 The other delegations rejected this provision also.67
Given the desire of the majority of GPW delegates to ensure that the Hague conditions apply to resistance fighters and that the GPW POW provisions follow the Hague Regulations as closely as possible, the drafters’ eventual inclusion of resistance fighters in subparagraph (A)(2) signifies that the Hague conditions do not apply to regular armed forces and their constituent militias and volunteer corps. Thus, since the Taliban detainees were members of the regular armed forces of the de facto government of Afghanistan, they are entitled to POW status. In addition, to the extent any al Qaeda detainees were acting as militia or volunteer corps members which formed part of the Taliban armed forces, those detainees are also entitled to POW status. Whether they are entitled to POW status is determined by their organizational structure68 and status at the time of capture. It is possible that international law requires nations to treat different al Qaeda units differently. For instance, certain al Qaeda units could have been subsumed within the Tali-ban while others acted independently. Indeed, given the Taliban’s nature to include relatively independent units, which constituted the “armies” of individual “warlords,”69 cross-structural status is an evident possibility.
2. Other Classifications Could Entitle al Qaeda Members to POW Status
Even if al Qaeda members do not qualify as members of the Taliban armed forces or as members of its integral volunteer corps or militia, they may still qualify for POW status. This would be the case if they were part of an independent volunteer corps or militia that fulfills the four Hague conditions. That status would depend on the facts, as demonstrated below,70 and requires findings by a competent tribunal before an al Qaeda member could be deprived of POW status. In addition, some al Qaeda members could conceivably qualify as members of a levee en masse.
a. Members of al Qaeda Could Qualify as Members of
Militias or Volunteer Corps Not Forming Part of the Taliban Armed Forces
As discussed above,71 members of militias and volunteer corps may qualify as prisoners of war if they satisfy a two-part factual inquiry. First, an examining tribunal must determine whether a particular al Qaeda unit was fighting on behalf of the Taliban,72 but not as part of its armed forces. If the first hurdle is cleared, the trier of fact must then determine whether the member satisfies the four Hague conditions:73 (1) a responsible command; (2) an easily distinguishable identifying sign;74 (3) the open carrying of arms; and (4) general conduct of operations in accordance with the laws and customs of war. Although, the determination whether these conditions are met depends upon specific facts, two issues should be highlighted.
1 Id. at 425. According to the Rapporteur, “[a]ll the Delegations except the United Kingdom had expressed themselves in favor of the Stockholm text, if necessarily amended.” Id.
2 Id. annex 92, at 62.
3 See id.
4 The Nuremberg Tribunal’s application of organizational guilt to the Nazi SS provides an interesting analogy. See generally TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 41-42, 584-86 (1992) (outlining the problems inherent in such charges).
5 Thom Shanker & Steven Lee Myers, U.S. Special Forces Step Up Campaign in Afghan Areas, N.Y. TIMES, Oct. 19, 2001, at A1 (discussing swapping the sides of warlords “in alliances of convenience”); R.W. Apple Jr., Pondering the Mystery of the Taliban’s Collapse, N.Y. TIMES, Nov. 30, 2001, at B2 (discussing the shifting allegiances of the Taliban militia).
6 See infra sec. I.C.
7 See infra sec. I.A(1).
8 See, e.g., S.C. Res. 1267, supra note 38. Because al Qaeda is a terrorist organization that directly caused the conflict between the United States, its allies and the Taliban, al Qaeda units may have been fighting as independent terrorist entities. It is conceivable, however, that after the United States intervened, al Qaeda units placed themselves in the Taliban’s service. The apparent intervention of al Qaeda in the Taliban’s civil war with the Northern Alliance makes that possibility more likely. On any given day, an al Qaeda unit might have been training for independent activities; serving as the Taliban’s “shock troops” in an internal conflict; or coordinating its activities against American and Allied forces. Dexter Filkins, The Legacy of the Taliban Is a Sad and Broken Land, N.Y. TIMES, Dec. 31, 2001, at A1.
9 GPW, supra note 3, art. 4(A)(2).
First, the four-part Hague requirement applies to a unit as a uniquely applicable to some of the persons captured in Afghan-whole, rather than to individuals. That is, Article 4(A)(2) istan, especially given the nation’s tribal and thoroughly xenorequires that a person seeking POW treatment is a member of a phobic history.79 It is certainly possible that a previously militia or other volunteer corps that meets the requirements.75 It uninvolved group of individuals, upon finding armed foreign-would be difficult for a person to qualify for POW status if that ers at the gate, might spontaneously resist. Several post-invaperson was the only member of his unit who abided by the laws sion clashes between Allied forces and “non-Taliban” fighters80 and customs of war. The corollary, however, is also true. The indicate at least the existence of that possibility. observation of such laws and customs by most members of a body fulfils the condition of compliance, notwithstanding indi-Thus, members of the Taliban have a colorable claim to vidual commission of war crimes by unit personnel.76 POW status under the GPW. Members of al Qaeda captured in
Afghanistan also may fall into one of several classifications
Second, if a unit satisfied the four-part Hague requirements, which provide them with POW status. Allowing these memit seems reasonable that an individual belonging to the comply-bers to claim POW status impacts the United States’ ability to ing unit would be initially treated as a POW, even if, as an indi-try them before military tribunals. vidual, he did not meet the standard. That is not to say the individual soldier could, for example, disregard the requirements to carry arms openly, but rather that a competent tribunal C. The Determination of Who Is Entitled to POW Status Is would determine on an individual basis if he disqualified him-Subject to a Presumption of Coverage self from POW status. The distinction is important, for it affords the individual due process in the determination of a sta-The GPW only covers those persons with a colorable claim tus which implicates extremely important procedural rights.77 to POW status. Article 5, however, provides that the “[c]onven
tion shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final
b. Some al Qaeda Members Could Qualify for Treatment as release,” and that “[s]hould any doubt arise as to whether . . . Members of a Levee en Masse someone is a prisoner of war, that individual . . . shall enjoy the protection of the present Convention until such time as their
Article 4(6) of GPW provides protections for participants in status has been determined by a competent tribunal.”81 The popular uprisings that constitute a special category—levee en intention of the Convention drafters is unmistakable. masse. “Inhabitants of a non-occupied territory, who on the [W]here, for instance, large numbers of prisapproach of the enemy spontaneously take up arms to resist the oners had been taken, doubts had sometimes invading forces, without having had time to form themselves arisen as to whether it was practicable to into regular armed units, provided they carry arms openly and apply the Convention without delay. Certain respect the laws and customs of war.”78 That provision may be delegates at the Conference of Government
1 The argument whether various colored turbans constitute an identifying sign is one of fact to be determined by a competent tribunal. If available evidence indicated that the various Afghan factions relied solely upon colors, (a distinct possibility in armies where soldiers may be illiterate), or that common religious beliefs precluded the use of symbols, the use of colored turbans might suffice as the necessary identifying sign. But the adversary must understand the symbol to qualify as distinctive identifying sign. If the United States could not distinguish the combatant wearing a green turban from a non-combatant wearing a green turban, it would not suffice. It is the perception of the adversary that is at issue. The U.S. Army field manual on the law of land warfare gives an example of a fixed distinctive sign as “[a] helmet or headdress which would make the silhouette of the individual readily distinguishable from that of an ordinary civilian.” U.S. DEP’T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE para. 64(d) (18 July 1956) [hereinafter FM 27-10].
2 See id. art. 4(A)(2).
3 FM 27-10, supra note 74, at 28.
4 See infra notes 192-197 and accompanying text.
5 GPW, supra note 3, art. 4(6). Although some members of al Qaeda may be mercenaries, that distinction has little relevance to this analysis. By definition, mercenaries are motivated by a desire for private gain. The Mercenary Convention and Protocol I suggest that customary international law is moving to exclude mercenaries from POW protective status. Because the al Qaeda members’ decision to fight, however, was based on religious convictions or cultural fervor, they arguably do not qualify as mercenaries. See International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, art. 1, § 1(b), U.N. GAOR, 44th Sess., Supp. No. 43, U.N. Doc. A/RES/44/34 (1989) (entered into force Oct. 20, 2001); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, art. 47, 1125 U.N.T.S. 3.
6 See generally PETER HOPKIRK, GREAT GAME: THE STRUGGLE FOR EMPIRE IN CENTRAL ASIA (1992).
7 See, e.g., U.S. Troops Comb Afghan Mountains for Taliban Forces; Move Signals Tactical Shift, MIAMI HERALD, Oct. 3, 2002, at A10 (discussing attacks on U.S. soldiers in Afghanistan by non-Taliban warlords); Julius Strauss, U.S. Base Hit by Rockets as Violence Spreads Through Afghanistan, DAILY TELEGRAPH (London), Apr. 15, 2002, at 11. One practical question is whether any local inhabitant, who viewed al Qaeda members as “foreigners” and “Arabs,” would claim to be a member of that member’s organization. See, e.g., Karl Vick, For U.S., Attack on Kandahar Was a Victory on Two Fronts, WASH. POST, Dec. 26, 2001, at A6; Jonathan Weisman, Battle Is Fiercest Yet, and It Won’t Be Last, U.S.A. TODAY, Mar. 5, 2001, at 7A.
Experts had considered that the exact time of Three of the principal warring nations during World War II, the beginning and ending of the application Germany, Japan, and the Soviet Union, largely ignored the of the Convention should not be explicitly 1929 Convention’s provisions. Germany argued that the 1929 stated. Some Powers had wished to make it Convention did not apply to the treatment of either Soviet or possible to change the status of prisoners of Polish prisoners, because the former was not a signatory to the war at some time during their captivity, for Convention, and the latter no longer existed as a state.86 In fact, instance at the end of hostilities; but the Germany turned most Polish prisoners over to the SS for use as majority at Stockholm had decided against slave laborers.87 The Germans also refused to treat captured making any such change possible. Article 4 partisans and resistance fighters as POWs.88 Japanese and [of the Stockholm Draft, ultimately GPW Soviet treatment of prisoners was also improper.89 By war’s Article 5,] had been introduced in order to end, there was no real doubt that the 1929 Convention was make the situation clear beyond all manner flawed, and that one major flaw was the refusal of some particof doubt.82 ipants to treat some or all captured combatants as POWs.90 Article 5 attempts to resolve that problem by creating a rebutta-
The significance of Article 5 stems from the context sur-ble presumption that any person captured in an international rounding its drafting. Geneva Convention 3, to include Article conflict is entitled to POW rights.91 5, was drafted immediately following the Second World War.83 The prevailing law on POW treatment during World War II was The U.S. Army, the primary proponent on POW issues The Convention Between the United States of America and within the DOD, addressed the presumption in Army Regula-Other Powers, Relating to Prisoners of War, commonly called tion 190-8, Enemy Prisoners of War, Retained Personnel, Civil-the 1929 Geneva Convention.84 The 1929 Convention did not ian Internees and Other Detainees (AR 190-8).92 The text of contain a provision similar to GPW Article 5. 85 AR 190-8 mirrors the relevant provisions of GPW Article 5. In
part, AR 190-8 states that
1 GPW, supra note 3, art. 5 (emphasis added). One might make a principled distinction between members of an organization apprehended while committing acts of violence outside the protection of Article 4, and members of that same organization, including co-conspirators, captured in or following an international armed conflict. That distinction, of course, relates only to the evidentiary rights and procedural rights due the individual. A detainee who has committed acts of murder and terrorism, within or without an armed conflict, is certainly subject to trial and punishment for those crimes. The phrase “any doubt,” necessarily implies any reasonable doubt. If a person is clearly not entitled to POW status, the GPW protections do not apply. For example, in United States v. Buck, the defendants claimed status as “revolutionaries” who were part of the Black Liberation Army and thus, supposedly, prisoners of war. 690 F. Supp. 1291 (S.D.N.Y. 1988). The District Court found that the GPW, Article 4, set certain minimum standards for assertion of POW status, and that the “[d]efendants at bar and their associates cannot pretend to have fulfilled these conditions.” Id. at 1298.
2 2 FINAL RECORD, supra note 47, at 245 (Committee II, 4th mtg.) (emphasis added). The Report of Committee II to the Plenary Assembly of the Diplomatic Con-ference of Geneva specifically notes that the second paragraph of Article 5 “will ensure that in the future no person whose right to be treated as belonging to one of the categories of Article  is not immediately clear, shall be deprived of the protection of the Conventions without a careful examination of his case.” Id. Report of Committee II to the Plenary Assembly of the Diplomatic Conference of Geneva, in 2 FINAL RECORD, supra note 47, at 563 (emphasis added) [hereinafter Report of Committee II].
3 The GPW was drafted at a diplomatic conference convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims and held at Geneva from April 21 to August 12, 1949. See 3 FINAL RECORD supra note 47.
4 Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 47 Stat. 2021, T.S. 846 [hereinafter 1929 Convention].
5 2 FINAL RECORD, supra note 47, at 245 (13th plen. mtg.). Committee II’s Rapporteur, in presenting the Committee’s work to the Conference as a whole, noted that
[m]any of the provisions here submitted to the Conference establish standards which might possibly be deduced from the 1929 convention. Experience has shown, however, that it is the way in which a general rule is interpreted which affects the daily life of prisoners of war. It was, therefore, appropriate to lay down explicit provisions interpreting in reasonable terms standards, many of which were inadequately defined. Further, even general principles, whose force seemed to be their very brevity, have been so grossly violated, that the Committee deemed it necessary so to clarify and amplify them that any future infringement would be at once apparent.
1 See RONALD H. BAILEY, PRISONERS OF WAR 11-14 (1982); see generally PAT R. REID, PRISONER OF WAR (Hamlyn, London 1984).
2 BAILEY, supra note 86, at 113.
3 See ROBERT B. ASPREY, WAR IN THE SHADOWS: THE GUERRILLA IN HISTORY ch. 31 (1975); see generally RUSSELL MILLER, THE RESISTANCE (1979); RONALD H. BAILEY, PARTISANS AND GUERRILLAS (1978).
4 See BAILEY, supra note 86, at 36, 112.
[i]n accordance with Article 5, [GPW], if any Thus, the position of the U.S. military is clear. “When in doubt arises as to whether a person, having doubt as to the captive’s status, treat and protect them as committed a belligerent act and been taken [POWs] until their status can be determined.”97 This policy is into custody by the US Armed Forces, grounded in longstanding ideals. belongs to any of the categories enumerated in Article 4, [GPW], such persons shall enjoy For over 220 years, our nation’s founding the protection of the present Convention until principles have extolled the values of human such time as their status has been determined life, and they form the basis for humane treat-by a competent tribunal.93 ment of enemy prisoners of war. National
ideals demand it, international law requires To achieve this goal, AR 190-8 requires that a “competent tribu-it. . . . Because the US Army’s honor and repnal”94 determine the status of any person “not appearing to be utation depend on firm but humane [POW] entitled to prisoner of war status who has committed a belliger-treatment, we must uphold the highest stanent act or has engaged in hostile activities in aid of enemy dards of conduct.98 armed forces” who asserts the status or concerning whom any doubt exists.95 It then describes the composition of the tribunal and its procedures.96
90. See, e.g., BOHDAN ARCT, PRISONER OF WAR, MY SECRET JOURNAL (1988) (containing an excellent source of anecdotal evidence relating to this treatment by a former prisoner). There are numerous biographies and anthologies documenting the experiences of former prisoners. See also ROGER AXFORD, TOO LONG SILENT (1986); A.J. BARKER, PRISONERS OF WAR (1975); MITCHELL G. BARD, FORGOTTEN VICTIMS (1994); JOSEF M. BAUER, AS FAR AS MY FEET WILL CARRY ME (1957); RON BAYBUTT, COLDITZ, THE GREAT ESCAPES (1982); HARRY BEAUMONT, OLD CONTEMPTIBLE (1967); ALAN CAILLOU, THE WORLD IS SIX FEET SQUARE (1954); THOMAS D. CALNAN, FREE AS A RUNNING FOX (1970); LEWIS H. CARLSON, WE WERE EACH OTHER’S PRISONERS (1997); CHARLOTTE CARR-GREGG, JAPANESE PRISONERS OF WAR IN REVOLT (1978); GAVAN DAWS, PRISONERS OF THE JAPANESE (1994); ROBERT E. DENNEY, CIVIL WAR PRISONS AND ESCAPES (1993); HAROLD DENNY, BEHIND BOTH LINES (1943); SAM DERRY, THE ROME ESCAPE LINE (1960); TERRENCE DES PRES, THE SURVIVORS (1976); JOHN DUNBAR, ESCAPE THROUGH THE PYRENEES (1955); WILLIAM E. DYESS, THE DYESS STORY (1944); IAN ENGLISH, HOME BY CHRISTMAS (1997); A.J. EVANS, THE ESCAPING CLUB (1921); HELMUT M. FEHLING, ONE GREAT PRISON (1951); HERBERT FORD, FLEE THE CAPTOR (1966); GEORG GAERTNER, HITLER’S LAST SOLDIER IN AMERICA (1985); ROBERT GAYLER, PRIVATE PRISONER (1984); SAMUEL GRASHIO, RETURN TO FREEDOM (1982); NERIN
E. GUN, THE DAY OF THE AMERICANS (1966); LINDA GOETZ HOLMES, 4000 BOWLS OF RICE (1994); DAVID HOWARTH, WE DIE ALONE (1955); ALEXANDER JANTA, BOUND WITH TWO CHAINS (1945); LOUIS E. KEEFER, ITALIAN PRISONERS OF WAR IN AMERICA (1992); AGNES NORTON KEITH, THREE CAME HOME (1981); E. BARTLETT KERR, SURRENDER & SURVIVAL (1985); ARNOLD KRAMMER, NAZI PRISONERS OF WAR IN AMERICA (1996); ROLF MAGENER, PRISONERS’ BLUFF (1954); BRUCE MARSHALL, THE WHITE RABBIT (1952); IAN MCHORTON, THE HUNDRED DAYS OF LT. MCHORTON (1963); KURT MOLZAHN, PRISONER OF WAR (1962); WILLIAM MOORE, THE LONG WAY ROUND (1986); AIREY NEAVE, LITTLE CYCLONE (1954); ALAN H. NEWCOMB, VACATION WITH PAY (1947); GRAHAM PALMER, PRISONER OF DEATH (1990); RICHARD PAPE, BOLDNESS BE MY FRIEND (1953); ALEXANDER RAMATI, THE ASSISI UNDERGROUND (1978); SLAVOMIR RAWICZ, THE LONG WALK (1956); PAT R. REID, ESCAPE FROM COLDITZ (1953); REID, supra note 75; OSCAR G. RICHARD, KRIEGIE, AN AMERICAN POW IN GERMANY (2000); ANTHONY RICHARDSON, ALONE HE WENT (1951); GILES ROMILLY, HOSTAGES OF COLDITZ (1954); JERRY SAGE, SAGE OF THE OSS (1985); A.P. SCOTLAND, THE LONDON CAGE (1957); LLOYD R. SHOEMAKER, THE ESCAPE FACTORY (NEW YORK, 1990); JAMES F. SUNDERMAN, AIR ESCAPE AND EVASION (1963)); VIRGIL V. VINING, GUEST OF AN EMPEROR (1968); WILLIAM L. WHITE, THE CAPTIVES OF KOREA (1957); JOHN S. WHITEHEAD, ESCAPE TO FIGHT ON (1990); ERIC WILLIAMS, THE WOODEN HORSE (1950)); BARRY WINCHESTER, BEYOND THE TUMULT (1971); J.E.R. WOOD, DETOUR (1946).
1 Taken together, Articles 4 and 5 effectively require the capturing Power to presume that POW status exists. See GPW, supra note 3, arts. 4-5. Article 5, however, allows the Detaining Power to rebut that presumption before a fair and competent tribunal. Id. art. 5.
2 See U.S. DEP’T OF ARMY, REG. 190-8, ENEMY PRISONERS OF WAR, RETAINED PERSONNEL, CIVILIAN INTERNEES AND OTHER DETAINEES para. 1-4(d) (1 Oct. 1997) [hereinafter AR 190-8] (stating that The Judge Advocate General (TJAG), U.S. Army, will provide guidance and advice regarding GPW Article 5 tribunals).
3 Id. para. 1-6.
4 The “competent tribunal” requirement demonstrates the GPW drafters’ close attention to procedural rights. Initially, the Stockholm Draft provided for determination by a “responsible authority.” Stockholm Draft, supra note 48, art. 4. An amendment offered by the Netherlands proposed the present language of Article 5, but with determination by a “military tribunal.” 2 FINAL RECORD, supra note 47, annex 95, at 63. The Danish delegation proposed substituting the phrase “competent tribunal” because “[t]he laws of the Detaining Power may allow the settlement of this question by a civil court rather than by a military tribunal.” Id. at 245 (13th plen. mtg.). The final article, with those amendments, was adopted without an opposing vote. Id. at 272. Given the drafters’ concern with both procedural rights and the efficiency of competent tribunals’ determinations, it seems clear that a Detaining Power may not satisfy legal rights through a unilateral declaration that it “has no doubt” about a detainee’s status.
5 AR 190-8, supra note 92, para. 1-6b. Thus, under AR 190-8, if someone asserts POW status, that individual is entitled to a tribunal even if the captor believes no doubt exists that he is not entitled to it. This Army regulation, as with all the statements of required actions by the United States, is, of course, evidence of the existence of state practice, and, as such, a primary source of international law. See, e.g., Statute of the International Court of Justice, June 26, 1945, art. 38, 59 Stat. 1031, 1043, 1978 U.N.Y.B. 1185, 1197; CLIVE PARRY, THE SOURCES OF EVIDENCE IN INTERNATIONAL LAW 8 (Manchester Univ. Press 1965).
6 See AR 190-8, supra note 92, para. 1-6 (c), (e). The tribunal must be composed of three commissioned officers with at least one of field grade. Proceedings must be open except for deliberations or when security would be compromised. Those claiming POW status are entitled to a number of substantive rights, including the right to attend the hearing, testify and call witnesses, and the right against self-incrimination. Id.
7 Note to Army Military Training Materials for Military Police, Processing Captives, available at http://www.atsc.army.mil/itsd/comcor/mp0001s.htm (last visited July 29, 2003).
D. Issues Raised by the United States Intention to Use war crime? Again, the answer is almost certainly yes. Not only Military Tribunals to Try Persons Captured in Combat does United States v. Uchiyama105 provide precedent for this conclusion, but the GPW makes it clear that violation of a
Three questions necessarily arise out of the announced POW’s right to a trial is a war crime.106 intention to use tribunals. First, are such bodies still legal under international law? The short answer is that they are, but only under certain circumstances and for the trial of certain individ-II. The History of American Military Commissions uals. The United States may only use tribunals to try captives subject to GPW if the tribunal applies current standards for U.S. The United States has used military commissions107 as an courts-martial. Since tribunals are not, in themselves, illegal alternative to courts-martial108 for a very long time. The name under U.S. law,99 they can satisfy international requirements. “military commission” was first used during the Mexican War
by General Winfield Scott,109 who announced that military
Second, and more important, are the procedural and eviden-commissions would try civilians for committing certain crimes tiary standards applied to World War II tribunals,100 which were in occupied Mexican territory.110 Preceding the Mexican War, incorporated either directly or by implication into Commission however, courts analogous to military commissions heard trials Order 1,101 still valid under current international law? The for violations of the laws of war.111 Contrary to current popular answer to that question is a most definite no. They meet neither belief, the use of military commissions was not unchallenged.112 the standards of the GPW, nor the current requirements of inter-The legality of military commissions was questioned by The national law as evidenced by human rights conventions and the Judge Advocate General at the beginning of the Civil War,113 rules of various currently existing102 and developing103 bodies although trials before commissions were held during that con-for the trial of international crimes and war criminals.104 flict.114 Following the Civil War, Captain Henry Wirz, com
mandant of the Andersonville prison camp was tried and
Finally, and of particular interest to those asked to partici-sentenced to death by a military commission.115 He was con-pate in such tribunals as convening authorities, judges, juries, victed of “maliciously, willfully and traitorously” conspiring to prosecutors, or otherwise, does participation in a trial of a POW “injure the health and destroy the lives” of POWs in violation that applies those World War II standards in itself constitute a of the laws of war.116
1 Colonel Walter R. Schumm et al., Treat Prisoners Humanely, MIL. REV. 83 (Jan.-Feb. 1998).
2 This is not a question of U.S. constitutional law; military tribunals are still valid under the reasoning of Ex parte Quirin. Rather, the issue is whether the proceeding meets international standards, and if not, whether the failure to do so invalidates the proceeding. Note, however, Quirin holds in part that
the detention and trial of petitioners—ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger—are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.
317 U.S. 1, 25 (1942) (emphasis added).
1 See discussion infra text accompanying note 148.
2 MCO No. 1, supra note 3.
3 See, e.g., Statute of the International Criminal Tribunal for the Former Yugoslavia, 32 I.L.M. 1192 (1993), available at http://www.un.org/icty; Statute for the International Criminal Tribunal for Rwanda, 33 I.L.M. 1602 (1994), available at http://www.ictr.org.
4 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 18, 1998, as amended through Jan. 16, 2002, (entered into force July 1, 2002), available at http://www.un.org/law/icc/index.html.
5 See infra sec. IV (discussing evidence procedure and appellate rights).
6 Tried at Yokohama, supra note 6.
7 See GPW, supra note 3, art. 3. For a discussion of Uchiyama, see infra notes 234-237 and accompanying text.
8 The Supreme Court has held that
[n]either the United States Constitution nor United States legislation provides that crimes committed by military personnel, crimes which violate the laws of war, or crimes related to the conduct of war must be tried before military authorities. The Supreme Court has characterized as “wellestablished” the power of military tribunals to exercise jurisdiction over enemy belligerents, prisoners of war and others charged with violating the laws of war.
Johnson v. Eisentrager, 339 U.S. 763, 786 (1950). The Supreme Court, however, has never stated or implied that such jurisdiction is exclusive. In re Demjanjuk, 603
F. Supp. 1468, 1476 (N.D. Ohio 1985).
A. Procedural History of Military Tribunals courts-martial.121 America’s sudden entry into World War II, and the resulting pressure for swift, stringent, and secret pun-
Although military commissions were long characterized by ishment of enemy agents, however, brought substantial changes an absence of set rules and procedures, they generally followed to existing practice. Those pressures quickly culminated in the the principles of law and procedural rules117 governing courts-espionage cases that became Ex parte Quirin.122 martial.118 That policy is unsurprising, given that commissions were originally developed so judicial bodies could try defendants otherwise outside their jurisdiction. The judicial partici-B. U.S. Military Commissions in World War II pants—military officers—were the same; their adoption of the procedures and rules they normally used naturally followed. 1. Ex parte Quirin
Military commissions remained unchanged from the Mexi-The use of commissions to try extraordinary crimes, and can-American War through the period before World War II.119 resulting questions about their governing rules and procedures, The 1928 Manual for Courts-Martial noted:120 Military Com-arose early in the war. In Ex parte Quirin,123 a military commismissions . . . These tribunals are summary in their nature, but sion comprised of seven U.S. Army officers124 appointed by so far as not otherwise provided have usually been guided by President Roosevelt tried German saboteurs caught on U.S. the applicable rules of procedure and evidence prescribed for soil.125 The most startling departure from previous practice in
108. WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 831 (2d ed. 1920 reprint).
Military commissions have also been called “common-law war courts.” Madsen v. Kinsella, 343 U.S. 341, 346 (1952). Military historian William Winthrop explains the development of the name “military commission” as follows:
The occasion for the military commission arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offenses defined in a written code. It does not extend to many criminal acts, especially of civilians, peculiar to time of war; and for these a different tribunal is required. A commander indeed, where authorized to constitute a purely war-court, may designate it by any convenient name. . . . But to employ the [name “court-martial”] for the two kinds of court could scarcely but result in confusion.
WINTHROP, infra note 108, at 831.
1 “Hence, in our military law, the distinctive name of military commission has been adopted for the exclusively war-court . . . .” Id.
2 The Mexican territory commissions were ordered pursuant to Headquarters, Dep’t of Army, Gen. Orders No. 20 (19 Feb. 1847) [hereinafter Gen. Order No. 20]. Note that offenses against the laws of war were tried by a council of war. WINTHROP, supra note 108, at 832. The general order provided that “[a]ssassination, murder, poisoning, rape, wanton destruction of churches . . . and destruction . . . of public or private property, whether committed by Mexicans or other civilians in Mexico against individuals of the U.S. military forces . . . should be brought to trial before Military Commissions.” Gen. Order No. 20, infra note, quoted in Nathan April, An Inquiry into the Juridical Basis for the Nuernberg War Crimes Trial, 30 MINN. L. REV. 314, 317 (1946).
3 See Ex parte Quirin, 317 U.S. 1, 12 nn. 9-10 (1942) (discussing cases, including the 1780 hanging of convicted spy Major John Andre of the British Army by order of a Board of General Officers appointed by General George Washington). In Madsen v. Kinsella, the Court noted:
By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the reason that the jurisdiction of the courts-martial, creatures as they are of statute, is restricted by law, and can not be extended to include certain classes of offense which in war would go unpunished in the absence of a provisional forum for the trial of offenders.
343 U.S. 341, 346 n.8 (1952) (citing HOWLAND, DIGEST OF OPINIONS OF THE JUDGE ADVOCATES GENERAL OF THE ARMY 1066-1067 (1912)).
2 William Fratcher, American Organization for Prosecution of German War Criminals, 13 MO. L. REV. 45, 46 (1948) (citing Case of Col. Ebenezer Magoffin, CSA, 1 MS Op. JAG 285).
3 Stephen Young, United States Military Commissions: A Quick Guide to Available Resources, at http://www.llrx.com/features/military.htm; see also Winthrop, supra note 108, at 833.
4 Famous Trials The Trial of Captain Henry Wirz, at http://www.law.umkc.edu/faculty/projects/ftrials/wirz/wirz.htm.
5 8 AM. ST. TRIALS 666 (1918), reprinted in 1 THE LAW OF WAR 783 (Leon Frieman ed., 1972).
6 Interestingly, the Rules of Proceeding in at least one post-Civil War military commission are still available. Those rules governed the trial of David Herold and other alleged assassins of President Lincoln. The commission allowed the defendants to choose their own counsel, examine witnesses, object to testimony of witnesses, and provided the defendants’ counsel a written daily transcript with a discretionary provision to the press. See Proceedings of a Military Commission, Washington D.C. (May 1, 1865), available at http://www.surratt.org/documents/Bplact01.pdf.
the rules created under the Roosevelt Order was the wholesale 2. Development of the Nuremburg and Tokyo Rules abandonment of prior procedural safeguards, including several steps for appeal.126 The Quirin commission rules, including a The Quirin rules were applied to post-war trials. Well before reduced standard for the admissibility of evidence and limited combat ended, the allies evaluated procedures for trials of war appeals, were applied in later war crimes trials conducted by criminals.128 Justice Robert H. Jackson of the Supreme Court, military commissions following the end of the war.127 who had been appointed129 chief U.S. prosecutor at the Nurem
berg trial of major war criminals, issued a Report to the Presi-dent on Atrocities and War Crimes on 7 June 1945.130 Justice Jackson’s report urged that
118. See Memorandum, Procedural Law Applied by Military Commissions (n.d.) [hereinafter Military Commissions Memorandum] (copy on file with the National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1853, File 46, the Legal Division of the office of the Supreme Commander Allied Powers (General Douglas MacArthur)) (quoting several authorities, including Charles Fairman, The Law of Martial Rule para. 251, at 264 (2d ed. 1943)) (“There are no requisite formalities, the omission of which would entitle the accused to an acquittal.” (citations omitted)); see Memorandum, Colonel Fairman, to Officers Attending Army JAG School (Feb. 1943) (“Questions concerning such a tribunal are not to be regarded from any narrow technical view . . . but on general principle.”). While the commission followed general principles of law and the procedural rules governing courts-martial, they were not, however, bound to do so. Id. Much of the authority cited, however, indicated that
as the only quite safe and satisfactory course for the rendering of justice to both parties, a military commission will, like a court-martial, permit and pass upon objections interposed to members, . . . receive all material evidence desired to be introduced, . . . and, while in general even less technical than a court martial, will ordinarily and properly be governed, upon all important questions, by the established rules and principles of law and evidence.
WINTHROP, supra note 108, at 841-42. The Military Commissions Memorandum concluded that
[a] military commission is not bound by a rigid set of rules governing the procedure and evidence since the authority by which they are brought into being did not provide them with any rules to follow. If the conduct of military commissions in the past is to be a guide, the same rules for procedure and rules of evidence governing General Courts Martial would prevail. But no rules of procedure or evidence are prescribed by international law or otherwise, and commissions are not bound to follow court martial procedures.
Military Commissions Memorandum, infra note 118, at 3 (emphasis added).
1 See WINTHROP, supra note 108, at 832.
2 MANUAL FOR COURTS-MARTIAL, UNITED STATES ¶ 2, at 1 (1928) [hereinafter 1928 MCM] (emphasis added).
3 Once again, however, they were not bound to do so. As the-then current Field Manual of Military Government & Civil Affairs provided, “[i]t is generally advisable to direct that Military Commissions follow the procedure of General Army or Navy courts Martial, except where such procedure is plainly inapplicable . . . .”
U.S. DEP’T OF ARMY, FIELD MANUAL 27-5, FIELD MANUAL OF MILITARY GOVERNMENT & CIVIL AFFAIRS 1 (22 Dec. 1943), cited in Memorandum, (n.f.n.) Greenberg, subject: Military Commissions Are Not Bound by Rigid Rules of Procedure of [sic] Evidence (n.d.), (copy on file with National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1853, File 46c).
1 LOUIS FISHER, NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW 46 (Univ. of Kansas Press) (2003).
2 317 U.S. 1 (1942). This case was tried between 8 July to 4 August 1942. Id.
3 The trial was held in the Department of Justice Building, Washington, D.C. The prosecutors included Attorney General Frances Biddle and The Judge Advocate General, U.S. Army, Major General Myron C. Cramer. Defense counsel included Colonel Kenneth C. Royall (later Secretary of War under President Truman) and Major Lausen H. Stone (son of Harlan Fiske Stone, the Chief Justice of the Supreme Court). Federal Bureau of Investigation (FBI) Office of Pub. & Cong. Affairs, George John Dasch & The Nazi Saboteurs, at http://www.fbi.gov/libref/historic/famcases/nazi/nazi.htm (last visited 13 Oct. 2003).
4 Id. The order of appointment provided that
The Commission shall have power to and shall, as occasion requires, make such rules for the conduct of the proceedings, consistent with the powers of Military Commissions under the Articles of War, as it shall deem necessary for a full and fair trial of the matters before it. Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man. The concurrence of at least two-thirds of the members of the Commission present shall be necessary for a conviction or sentence. The record of the trial, including any judgment or sentence, shall be transmitted directly to me for my action thereon.
Appointment of a Military Commission, 7 Fed. Reg. 5103 (July 3, 1942). The rules developed for the Quirin commission followed the Presidential Order. See Ex parte Quirin, 317 U.S. 1, 46-48 (1942).
1 FISHER, supra, note 122, at 48-49.
2 John Elwood, Prosecuting the War on Terrorism: The Government’s Position on Attorney-Client Monitoring, Detainees, and Military Tribunals, 17 CRIM. JUST. 30, 51 (2002). The Quirin rules were “followed in hundreds of military commissions after World War II.” Id. Wallach, supra note 1, at 862 nn.47- 49.
[t]hese hearings . . . must not be regarded in Far East (IMTFE), and applied thereafter to military commisthe same light as a trial under our system sions trying war criminals in both theaters.132 The rules allowed where defense is a matter of constitutional for great flexibility in their application; consequently, a fair trial right. Fair hearings for the accused are, of depended upon the good faith of the various military command-course, required to make sure that we punish ers empowered to create the commissions. only the right men and for the right reasons. But the procedure of these hearings may properly bar obstructionist and dilatory tac-3. Application of the Rules in Military Tribunals tics resorted to by defendants in our ordinary criminal trials.131 The procedural development of the IMT sprang from the
London Charter133 and Control Council Law No. 10,134 which
Thus, based upon Quirin and its extraordinarily rules, the allowed each power, within its zone, to arrest suspects and United States developed procedural and evidentiary approaches bring them “to trial before an appropriate tribunal.”135 These for the trial of post-war criminals. Those rules were initially follow-up tribunals136 were comprised of three or more memdeveloped for the International Military Tribunal at Nuremburg bers that the parties could not challenge.137 They applied (IMT), expanded for the International Military Tribunal for the rules138 similar to the IMT139 governing indictments and inher
128. Memorandum, Major General Myron Cramer, The Judge Advocate General, U.S. Army, subject: Applicability of Articles of War to Trials of War Criminals by Military Commissions 4 (n.d.) (on file with National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1853, File 2A). In this memorandum, The Judge Advocate General, Myron Cramer, noted:
[T]he proponents of the claim that Congress by the Articles of War intended to regulate the extraterritorial relations of the Army with foreign belligerents, have a heavy initial burden. I am the more moved to this viewpoint by [Ex parte Quirin, which held] that Congress by providing in the Articles of War for the trial of offenses committed by enemy belligerents “has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns.” If therefore, Congress has not invaded the substantive field of these offenses, there is a fair inference, proof to the contrary being lacking, that it did not intend to enter the procedural field in this respect.
Id. (emphasis added). Thus, unrestrained by the Articles of War, Cramer proceeded with his reasoning on development and application of procedures for war crimes commissions:
You have asked my opinion whether the Articles of War constitute a limitation on the procedure of military commissions appointed by authority of United States army commanders in occupied territory for the trial of war criminals. The question is important for the reason that if applicable, alleged war criminals would be entitled to assert a privilege against self-incrimination under Article of War 24, testimony by deposition could not be adduced against their consent under Article of War 25, and the reviewing or confirming authority would be required to refer the record of trial to his staff judge advocate or The Judge Advocate General before acting thereon under Article of War 46.
Id. at 1. His conclusion is telling. After a review of applicable law, Cramer stated that
[c]arried to its logical extent, the claim that the Articles of War apply to trials of war criminals results in the conclusion that Congress intended, as a matter of public policy, to extend the protection of the Articles of War to such offenders. This in turn would outlaw American participation in international tribunals convened for such trials unless the protections of the Articles of War were observed by those tribunals. I cannot bring myself to reach any such conclusion.
Id. at 6 (emphasis added).
1 Exec. Order No. 9547, 10 Fed. Reg. 4961 (1945).
2 JUSTICE ROBERT H. JACKSON, REPORT TO THE PRESIDENT ON ATROCITIES AND WAR CRIMES (June 7, 1945).
3 Id. para. III(2).
4 See PHILLIP PICCIGALLO, THE JAPANESE ON TRIAL (1979). See also Wallach, supra note 1, at 862 nn.53-54, 66-70 (demonstrating application of Quirin rules to later Far East “minor” trials). Roosevelt’s order in Quirin has been cited as the “first . . . expression” of the “basic position toward admission of evidence” in trials of war criminals. Id.
5 Charter of the International Military Tribunal, annexed to the London Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. The Charter provided that “[t]he constitution, jurisdiction and functions of the International Military Tribunal shall be those set in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement.” Id. art 2; see generally Wallach, supra note
1. The procedural and evidentiary discussion that follows may be found, in expanded form, in that article.
134. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, art. 3 (Dec. 20, 1945), 3 Official Gazette Control Council for Germany 50-55 (1946) [hereinafter Control Council Law No. 10].
ent powers.140 These rules provided for the required confirma-vided that the IMTFE would consist of six to eleven members. tion of any death sentence by the theater commander and that MacArthur would appoint those members from names submit-trials would be held in open court “except when security, pro-ted by the victor nations in the Far East.146 The Charter did not tection of witnesses, or other considerations make this inadvis-provide for appointment of alternates; instead, “the presence of able.”141 The rules did contain certain substantive changes,142 a majority of all members [was] necessary to constitute a quo-however, including expansion of the evidentiary rules.143 rum. All decisions and judgments, including convictions and sentences, were by a majority vote of members present.”147 Per The Tokyo and Nuremberg Charters had important differ-its Charter, the IMTFE drafted its own procedural and eviden
ences.144 The IMTFE Charter was created on 19 January 1946, tiary rules.148
by order of General Douglas MacArthur.145 The Charter pro
2 The United States conducted two sets of follow-up trials in Germany under Control Council Law No. 10. The first group of trials were prosecuted under Telford Taylor at Nuremberg. See generally TELFORD TAYLOR, FINAL REPORT TO THE SECRETARY OF THE ARMY ON THE NUREMBERG WAR CRIMES TRIALS UNDER CONTROL COUNCIL LAW NO. 10 (Aug. 15, 1949) [hereinafter TAYLOR, FINAL REPORT]. Most of the other trials were held at the former German concentration camp at Dachau. Maximilian Koessler, American War Crimes Trials in Europe, 39 GEO. L.J. 18, 25 (1950). The “common trial” approach, (involving related acts, times, and locales) was used in both Europe and Asia. Paul Spurlock, The Yokohama War Crimes Trials: The Truth About a Misunderstood Subject, 36 ABA J. 387, 389 (1950).
3 Control Council Law No. 10, supra note 134, art. 3.
4 Control Council Ordinance No. 7 (18 Oct. 1946) [hereinafter Control Council Ordinance No. 7]; see also Regulation on Military Commissions Issued by Letter of Headquarters, U.S. Forces, European Theater (25 Aug. 1945), reprinted in 39 GEO. L.J. 106-12 (1950).
5 See Charter of the International Military Tribunal supra note 133. The tribunals were also permitted to promulgate their own supplemental rules of procedure. Control Council Law No. 10, supra note 134, art. 5. Several sets of rules were issued, providing for, inter alia, the specifics of representation by counsel, the filing of motions, and the production of evidence at trial. A uniform set of procedures was eventually issued by joint action of the tribunals. Office of Military Government (U.S.), Uniform Rules of Procedure, Military Tribunals Nuremberg, (Jan 24, 1948) (final iteration of rules), available at http://www.yale.edu/lawweb/avalon/imt/ rules5.htm.
6 Control Council Law No. 10, supra note 134, arts. 4-5.
7 Control Council Ordinance No. 7, supra note 138; see also Regulation on Military Commissions Issued by Letter of Headquarters, U.S. Forces, European Theater (25 Aug. 1945), reprinted in 39 GEO. L.J. 106-12 (1950).
8 See TAYLOR, FINAL REPORT, supra note 136, at 89. One modification was the appointment by the tribunals of commissioners. It had implications on the resolution of the overwhelming numbers of defendants—a continuing problem.
Upon the conclusion early in 1948 of the “RuSHA case,” . . . Judge Crawford (who had been a member of that tribunal) was appointed as the Chief of the Commissioners for the Tribunals. Judge Crawford, assisted by several associate commissioners, took testimony from then until the conclusion of the court proceedings in the “Ministries case” in the fall of 1948. The commissioners had no power to rule on questions of evidence, but certified the transcript of proceedings before them to the tribunals.
1 See Elwood, supra note 127, at n.53.
2 Unlike the protracted London Charter negotiations, there was no need for any decision making other than by fiat. The Potsdam ultimatum, issued by the Allies on 26 July 1945, provided that “stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners.” Potsdam Declaration, art. 10 (July 26, 1945).
3 Greg R. Vetter, Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC), 25 YALE J. INT’L L. 89, 105 (2000) (“The Tokyo tribunal in the Far East (IMT-FE) was set up by proclamation of General Douglas MacArthur . . . on January 19, 1946.”). The embodiment of sovereignty in General MacArthur as Supreme Commander for the Allied Powers (SCAP) meant there was no need to negotiate. General MacArthur could have issued rules similar to the
U.S. Articles of War, those governing military commission in the United States, or an exact copy of the Nuremberg Charter. He did not. The absence of the negotiating process had at least one significant effect. Article 9, which began with the same words as Article 16 of the Nuremberg Charter (“In order to insure fair trial”), did not require a continental indictment including “full particulars which specified the charges in detail. Instead, following the American rule, the indictment was to “consist of a plain, concise and adequate statement of each offense charged.” CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST art. 9 (Jan. 19, 1946), avail-able at http://www.yale.edu/lawweb/avalon/imtfech.htm (last modified Sept. 9, 2003) [hereinafter IMTFE CHARTER].
1 IMTFE CHARTER, supra note 145, art. 2. General MacArthur appointed judges from eleven nations: India, the Netherlands, Canada, the United Kingdom, the United States, Australia, China, the Soviet Union, France, New Zealand, and the Philippines. Walter McKenzie, The Japanese War Crimes Trial, 26 MICH. STATE B.J. 16, 17 (1947).
2 IMTFE CHARTER, supra note 145, art. 4. If an absent member returned, he could take part in all subsequent proceedings, unless he declared “in open court that he [was] disqualified by reason of insufficient familiarity with the proceedings which took place in his absence.” Id. art. 4.
Prior to the Japanese surrender, the allies began plans for tri-a. Procedural Issues in the Post-World War II Trials als of minor149 war criminals. The War Crimes branch was organized in March 1945, in the office of the Theater Judge The flexible nature of the procedural rules used in the post-Advocate.150 These “minor” tribunals151 used procedures World War II trials gave rise to substantial and repeated procederived from the Quirin commission. The internal memoranda dural issues. The evidentiary rulings were more questionable, of SCAP’s (Supreme Commander for the Allied Powers) Legal and are treated separately below. The lax nature of the trial proDivision152 indicate an intention153 to apply the procedures of ceedings, however, also raised many other substantive ques-
U.S. military commissions directly.154 Their regulations laid tions. out the same rules of evidence and procedure discussed above.155 When compared with the application of the Nurem-Procedural problems in the trials went well beyond evidenberg Rules, however, the tribunals’ application of their own tiary issues, 156 especially in the IMTFE. For example, both rules provides a stark example of the potential for abuse when IMTs indicted arguably senile or insane defendants.157 At varirules are so flexible as to be non-existent. ous times, there were improper communications with judges,158
inconsistent rulings favoring the prosecution,159 vague and ambiguous indictments under the Tokyo rules,160 questions regarding the applicability of the Geneva Conventions to the defendants,161 and the denial of motions to recuse biased
1 Id. arts. 7, 13. The Tribunal’s evidentiary powers were a synthesis of those contained in the Nuremberg Charter and Rules and those in the Royal Warrant issued for the trial of war criminals by the United Kingdom. See The Royal Warrant, Regulations for the Trial of War Criminals (United Kingdom) (June 18, 1945), available at http://www.yale.edu/lawweb/avalon/imt/imtroyal.htm.
2 “The word ‘minor’ is not used as a definition of the offenses involved, but merely to distinguish the persons they are trying from the ‘major war criminals’ being tried by the next division.” McKenzie, supra note 146, at 16.
3 Spurlock, supra note 136, at 387. On 6 December 1945, General MacArthur directed General Robert Eichelberger to appoint military commissions to conduct trials immediately. Id. n.81.
4 Most of the “minor” trials were held at Yokohama, Japan. Id.
5 See Military Commissions Memorandum, supra note 118.
6 That they were completely successful in doing so may be explained by the complete control exercised by General MacArthur as SCAP, and the pervasive influence which must exist when the power to appoint prosecution, defense, and the judiciary, as well as all administrative services and powers, rest in the hands of one individual. See Spurlock, supra note 136, at 388. General MacArthur’s letter of 6 December 1945, shows the sort of influence which that could be exercised without direct orders:
[T]he following special provisions will be applied to war criminal suspects . . .
A. They will not be treated as prisoners of war
B. Quarters, food and privileges will be accorded suspects in keeping with those customarily provided for ordinary criminals, charged with an equally revolting domestic crime.
Letter from General Douglas MacArthur, Supreme Commander for the Allied Powers, to the Commanding General, Eighth Army, subject: Detention, Interrogation and Trial of Suspected Japanese War Criminals (Dec. 6, 1945) (SCAP Letter AG 000.5), quoted in Robert Miller, War Crimes Trials at Yokohama, 15 BROOK. L. REV. 191, 192 (1949) (emphasis added).
1 See Military Commissions Memorandum, supra note 118. General MacArthur’s issuance of Regulations Governing the Trial of War Criminals on 24 September 1945, aided the Legal Division in achieving that goal. These regulations were the precursor to both the December minor trials order and the IMTFE tribunal order. See National Archives, Records of SCAP Legal Division Record Group 331, Stack 290, Row 9, Compartment 31, Shelf 1+, Box 1855, File 124 [hereinafter SCAP].
2 The similarity included an article on evidence, Article 16, which was precisely the same as that issued for the Tokyo Tribunal. See Regulations Governing the Trial of War Criminals, supra note 154.
3 ROBERT K. WOETZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 228 (1962). One major substantive distinction between the major war crimes tribunals was that “the Tokyo Tribunal [under Article 5] . . . had jurisdiction over persons only if they were accused of having committed offenses which included crimes against peace, in contrast to the Nuremberg Tribunal which had no exclusive provision of this kind.” Id.
4 For example, the Nuremberg Tribunal severed Gustav Krupp as a defendant. TAYLOR, supra note 68, at 157. Rudolf Hess was probably insane, but stood trial and was convicted. Id. at 177-80. Shumei Okawa was adjudged insane on 17 May 1946, but retained as a defendant. Gordon Ireland, Ex Post Facto from Rome to Tokyo, 21 TEMP. L.Q. 27, 51-52 (1947).
5 In his capacity as a prosecutor, Justice Jackson engaged in ex parte communications with Judge Biddle before the Tokyo Tribunal. TAYLOR, supra note 68, at
134. These communications sent “the proprieties ‘by the way’ for fair.” Id.
159. 2 The Tokyo Judgment, Opinion by Judge Pal 633-34 (Amsterdam Press 1977) [hereinafter Pal Opinion] (emphasis added); TAYLOR, supra note 68, at 321.
judges.162 In addition, to an extent often confounding to coun-The procedural flaws of the post-war tribunals illustrate the sel, there were many unresolved questions.163 importance of standardized and closely articulated rules. While it is easy to complain about “technicalities” and “lawyers spout-
The distinction between the number of judges at Nuremberg ing off,” conducting a fair trial without some sort of predictable and Tokyo, and the concomitant quorum rules, provides a clas-model is not.166 The farther a procedure strays from a closely sic example of the flexibility of the rules and their effect on fair-articulated model, the more likely it will go wrong. The diver-ness.164 The same court could, in good faith, issue diametrically gence in evidentiary issues under the Quirin rules in the post-opposed rulings on different days in a case involving the same war trials illustrates that lesson even more starkly. parties and precisely the same issues. 165
160. 1 The Tokyo Judgment, Opinion by Judge Bernard 494 (Amsterdam Press 1977) (explaining that the lack of specificity in indictments was one reason Judge Bernard of France dissented stating, “Though I am of the opinion that the Charter permitted granting to the Accused guarantees sufficient for their defense, I think that actually these were not granted to them”). Although the SCAP stated that the accused was “entitled to have in advance of trial a copy of the charges and specifications clearly worded so as to apprise the accused of each offense charged,” these requirements were not often followed. Miller, supra note 153, at 195-96.
For example, the specifications might specifically name two or three prisoners alleged to have been abused by the accused and the manner of abuse. Then might follow several wherein it was alleged that between 15 January 1942 and 1 June 1945, he did beat, wound, kick, abuse and otherwise torture an American prisoner of war known as “Whitey” or “Shorty” or some other nickname. The final or “catch-all” specification was that he, between the above-stated periods, abused numerous other American or Allied prisoners of war, no names or other data being stated. The affidavits would usually not identify the party whose nickname had been used. The “catch-all” specification was supported by affidavit statements that the accused was “always slapping and kicking” the prisoners, or “whenever he was around, there was always trouble.”
Inasmuch as there was no standing commission to which a motion for a bill of particulars could be addressed prior to trial, such remedy was foreclosed until after trial [commenced] . . . [the name specification might be the same incident as the nick-name specification]. The attempt by way of motion, either for a bill of particulars or to strike, had scant chance for success.
1 Both in Japan and Germany, the Allies denied war crime defendants their rights to housing, allowances, and association under the existing Geneva Convention. See In re Yamashita, 327 U.S. 1, 20 (1946); Miller, supra note 153, Koessler, supra note 136, at 192 n.69; , supra note 30, at 19 n.6. Yet, an Axis defendant was subject to prosecution for denying those same Geneva Convention rights to Allied prisoners charged with war crimes. United States v. Uchiyama, Case-35-46, War Crimes Branch Case Files, Records of The Judge Advocate General, Record Group 153 (Yokohama, 18 July, 1947) (on file with author); see discussion, infra nn.234237 and accompanying text.
2 See, e.g., RICHARD MINEAR, VICTOR’S JUSTICE (1971). Minear points out that the Soviet delegate at the London Conference and later judge at Nuremberg, General
I. T. Nikitchenko, said
with regard to the position of the judge the Soviet Delegation considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case. The case for the prosecution is undoubtedly known to the judge before the trial starts and there is, therefore, no necessity to create a sort of fiction that the judge is a disinterested person who has no legal knowledge of what has happened before.
Id. at 80-81 (quoting The Avalon Project, Minutes of Conference Session of June 29, 1945, in INTERNATIONAL CONFERENCE ON MILITARY TRIALS: LONDON (1945)), avail-able at http://www.yale.edu/lawweb/avalon/imt/jackson/jack17.htm.
The French Government appointed its London representative as an alternate justice. The United States appointed Francis J. Biddle as Attorney General and a coauthor of a memorandum that expressed a preference for military justices, such justices “being less likely to give undue weight to technical contentions and legalistic arguments. Id. (quoting The Avalon Project, Minutes of Conference Session of June 29, 1945, in INTERNATIONAL CONFERENCE ON MILITARY TRIALS: LONDON (1945)), available at http://www.yale.edu/lawweb/avalon/imt/jackson/jack17.htm. At Tokyo, the Philippine justice, Delfin Jaranilla, was a survivor of the Bataan death march; the second American justice, General Cramer, had submitted a legal brief to President Roosevelt on the responsibility for the attack on Pearl Harbor; and President Webb had been Australian war crimes commissioner during the war. Id. at 81-82.
After the Tokyo Tribunal rejected the challenge of any judge, on jurisdictional grounds, President Webb stated
that, before he accepted his appointment, he seriously considered what effect his reports would have on his position as a member of the Tribunal. He had come to the conclusion without difficulty that he was eligible, his views being supported by the best legal opinion available to him in Australia.
Flight-Lieutenant Harold Evans, The Trial of Major Japanese War Criminals, 23 N.Z. L.J. 8, 23 (1947). This was the same judge who, at a later point in the trial, asked a Japanese witness if “the purpose of the Imperial Rule Assistance Association was to prepare the people for an inhumane and illegal war against Great Britain and America, a war which should not have been begun and a war which cannot be defended?” 1 THE TOKYO WAR CRIMES TRIAL 1684 (Garland Publishing Co., 1981).
1 One such question is how to obtain an authoritative translation? Attorneys, who often did not speak the language of the defendants, were at the mercy of the ability and integrity of their translator for vital document reviews and interrogations. See TAYLOR, supra note 68, at 176. General MacArthur ordered one case retried because of a failure to translate a confidential document to the accused, although the court admitted it into evidence. Spurlock, supra note 136, at 437; Robert Grier Stephens, Aspects of the Nuremberg Trial, 8 GA. B.J. 262, 266 (1946).
2 At the Tokyo Tribunal, President Webb, with extraordinary candor, describes the fairness of these proceedings.
b. Evidentiary Issues in the Post-World War II Trials
of the defendant.
While this latter may not
have been held out affirmatively as defense
The permissive nature of the evidentiary rules used in the
counsel, the accused had every reason to
post-World War II tribunals allowed for the admission of evi
believe he was taking that part. No sentence
dence that raised concerns well beyond mere technical quib
was pronounced[,] but the accused was made
bles. For example, German suspects in the Malmedy Massacre
to understand that it was his last chance to
case167 claimed the prosecution subjected them to improper
talk and undoubtedly in some cases under-
methods of investigation, in particular mock trials. An Admin
stood he had been convicted.
istrative Review Board168 (Raymond Board) investigated this
According to the Raymond Report:
Following the mock trial[,] the man who had
played the friend of the accused at the mock
When the prisoner was brought into the mock
trial would talk to him confidentially and
trial room[,] sometimes other people were
advise him to tell what he knew. This proce
brought in who purported to testify against
dure met with varying success, but undoubt
There is no evidence on which the
edly some defendants would confess at least
board can find that the prisoner himself was
part of their crimes under the influence of
forced to testify at such trial. One member of
the prosecution team would play the part of
prosecutor, and another would act as a friend
I am not here to offer any apology on behalf of the Tribunal, but as you know the Charter says we are not bound by the technical rules of evidence. That not merely prevents us from following our own technical rules—we could hardly do that because there are eleven nations represented and in some particulars they all differ in these technical rules—but it has the effect of preventing us from substituting any other body of technical rules of our own. All we can do on each piece of evidence as it is presented is to say whether or not it has probative value, and the decision on that question may depend on the constitution of the court. Sometimes we have eleven members; sometimes we have had as low as seven. And you cannot say, I cannot say, that on the question of whether any particular piece of evidence has probative value you always get the same decision from seven judges as you would get from eleven. I know that you would not . . . . You cannot be sure what decision the court is going to come to on any piece of evidence—not absolutely sure—because the constitution of the court would vary from day to day and I would be deceiving you if I said decisions did not turn on how the court was constituted from time to time. They do. On the other day in court on an important point I know the decision would have been different if a Judge who was not here was present. How are we to overcome that?
We cannot lay down technical rules. We might spend months in trying to agree upon them and then fail to reach an agreement. The Charter does not allow us to adopt them in any event. It is contrary to the spirit of the Charter. The decision of the Court will vary with its constitution from day to day. There is no way of overcoming it.
Pal Opinion, supra note 159, at 654-55 (quoting President Webb) (emphasis added).
165. One area in which the procedures cannot be faulted at all is the provision of defense counsel. Indeed, the Court noted in In re Yamashita that “[i]n all cases it appears that defense counsel were competent and zealous in their representation. Throughout the proceedings which followed, including those before this Court, defense counsel have demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged.” In re Yamashita, 327 U.S. 1, 5 (1946). Professor Benjamin Ferencz, one of the chief prosecutors in the subsequent Nuremberg cases, pointed out that
no German lawyer [was] ever . . . excluded if he was requested as counsel for a defendant. In fact, most of the German counsel chosen [were] themselves subject to arrest or trial in German courts under German law for membership in the Nazi Party or the criminal SS. If tried, many of them would [have been] barred from legal practice but they [were], through the intervention of the American authorities, . . . given immunity from prosecution in their own courts in order to ensure that accused war criminals [would] have a free choice of counsel from those Germans whom they consider best suited to defend them.
Benjamin B. Ferencz, Nurnberg Trial Procedure and the Rights of the Accused, 39 J. CRIM. L. & CRIMINOLOGY 144, 146 (1948).
1 See, e.g. Rich Lowrey, When to Hold Them Is It OK to Detain the Terrorist-fighters in Guantanamo Bay “Indefinitely”?, Nat’l Rev. On-Line (March 26, 2002), at http://www.nationalreview.com/lowry/lowry032602.asp, and Thomas Sowell, Two Trials---and future trials, townhall.com, July 23, 2002, at http://www.townhall.com/columnists/thomassowell/ts20020723.shtml
2 Malmedy was the site of the murder of American POWs by SS troops at the orders of their commander. After the press revealed the discovery of the massacre, the American military and the public exerted considerable pressure to discover and punish the perpetrators. See Koessler, supra note 136, at 26-27.
3 U.S. Dep’t. of War, FINAL REPORT OF PROCEEDINGS OF ADMINISTRATION OF JUSTICE REVIEW BOARD (The Raymond Report) (14 Feb. 1949).
4 See also Wallach, supra note 1, at 870-72. The Raymond Report generally rejected allegations of physical abuse as unfounded, but it found that “in an attempt to ‘soften up’ certain witnesses prosecutors used ‘mock trial’ procedures.” Id. at 870.
5 Id. paras. 13-14. “This procedure has a further bearing on the preparation of the case when it really came to trial. Defense Counsel appointed for the accused found difficulty in getting the confidence of the defendants because of their experience with the mock trials . . . .” Id. para. 15.
The Chief Prosecutor for the Malmedy case was Lieutenant numerous evidentiary problems, and he specifically objected to Colonel (LTC) Burton Ellis. He testified before the Senate171 Article 16 of the IMTFE’s Charter.176 He noted that “[a] more regarding the propriety of such methods.172 Ellis’s testimony complete abrogation of customary safeguards relating to the demonstrates the negative effect that unstructured rules may proof, whether in the usual rules of evidence or any reasonable have on the approach of a prosecutor under pressure (external substitute and whether for use in the trial of crime in the civil or internal) to achieve successful results. While LTC Ellis’ courts or military tribunals, hardly could have been made.”177 statements may be unusually candid, the attitude he expressed was not his alone.173 The tribunals experienced many other evidentiary prob
lems178 due to the extraordinarily loose language under which
In In re Yamashita174 and In re Homma,175 the Supreme Court they operated, including routinely argumentative questions by refused to apply constitutional protections to the war crimes tri-counsel,179 questions of judicial notice,180 the admission of affials. In his dissent in Yamashita, Justice Rutledge objected to davits by witnesses whom there was no opportunity to cross
1 Malmedy Massacre Investigation, 1949: Hearings on S. Res. 42 Before a Subcomm. of the Comm. on Armed Services, 81st Cong. 28-69 (1949).
2 Id. Lieutenant Colonel Ellis testified before the Senate to the following:
Colonel Ellis: Sir, . . . the rules of evidence under which the war crimes were tried were most liberal.
. . . . [Senator Joseph R. McCarthy, D-WI]: Do you think this type of mock trial was proper or improper? . . . Colonel Ellis: I think the answer to that question would be—so long as I let the court who weighs the evidence know how I obtained that confession, that is the important thing. Then, the duty is on them. . . . Sen. McCarthy: In other words, you say it would be proper to get a confession in any way you saw fit, so long as you let the court know how you got the confession? Colonel Ellis: I think under the rules of evidence it would be perfectly proper. There were some things that would be repulsive to one individual that would not be to another. I would certainly not allow a confession to be used where a man was beaten or forced under threats or compulsion to make a confession. I am definitely opposed to that.
. . . .Sen. McCarthy: . . . You think it is proper then, to use the mock trial if the court were informed. . . .Colonel Ellis: Under the rules of evidence which we were practicing under over there, I think it would be . . . .Senator McCarthy: Do you feel . . . using different rules of evidence . . . is proper?Colonel Ellis: Most certainly; they admitted hearsay there and you don’t here.
Id. at 46-47 (June 6, 1949).
1 See, e.g., Elton Hyder, The Tokyo Trial, 10 TEX. B.J. (1947) (“Considerable hearsay testimony was offered against the accused necessitated by the loss or destruction of original documents. Reason dictated its use.”).
2 327 U.S. 1 (1946). At least one author argues that Yamashita was chosen as the first defendant to provide precedence for later trials. He cites reports that General MacArthur had “urged ‘haste’ upon the military commission.” PHILLIP PICCIGALLO, THE JAPANESE ON TRIAL 56 (1979).
3 327 U.S. 759 (1946).
4 Yamashita, 327 U.S. at 48-49.
5 Id. at 49 (Rutledge, J., dissenting). Rutledge continues,
So far as the admissibility and probative value of evidence was concerned, the directive made the commission a law unto itself. It acted accordingly. As against insistent and persistent objection to the reception of all kinds of “evidence,” oral, documentary and photographic, for nearly every kind of defect under any of the usual prevailing standards for admissibility and probative value, the commission not only consistently ruled against the defense, but repeatedly stated it was bound by the directive to receive the kinds of evidence it specified, reprimanded counsel for continuing to make objection, declined to hear further objections, and in more than one instance during the course of the proceedings reversed its rulings favorable to the defense, where initially it had declined to receive what the prosecution offered. Every conceivable kind of statement, rumor, report, at first, second, third or further hand, written, printed, or oral, and one “propaganda” film were allowed to come in . . . .
Id. See also John T. Ganoe, The Yamashita Case and the Constitution, 25 OR. L. REV. 143, 148 (1946).
1 One such problem related to the introduction of character evidence. The later Nuremberg tribunals incorporated a character evidence rule similar to Rule 12(3), Rules of Procedure in Military Government Courts. Rule 12(3) reads that “Evidence of bad character of the accused shall be admissible before finding only when the accused has introduced evidence as to his own good character or as to bad character of any witness for the prosecution.” Id.
2 Taylor says the “Soviet fashion” was to mix “questions with pejoratives.” TAYLOR, supra note 68, at 430-31.
3 The Soviets argued that the judicial notice provision of Article 21 required that their report blaming the Germans for a massacre of Polish officers in the Katyn Forest should receive binding weight; considerable evidence indicated the Russians themselves committed the murders. The tribunal refused to find the report irrebuttable. Id. at 468-69.
examine,181 and the exclusion of evidence that was arguably rel-and its members, when “technical rules of evidence”186 go by evant to the defense.182 These evidentiary problems resulted in the wayside, and evidence is admitted based solely upon the inefficiency,183 uncertainty,184 and at least in the view of Justice opinion of the commission that it has probative value to a rea-Rutledge, blatant unfairness.185 sonable person; there is an open invitation to misconduct, unfairness, and what Justice Murphy characterized as “judicial
There are most certainly lessons to be learned from the use lynchings.”187 It is the sum of the problems that arose from of the Quirin evidentiary rule in the post-war trials. Chief those trials, both procedural and evidentiary, which strongly among them is that no matter how good-willed the commission
181. The Nuremberg and Tokyo Tribunals resolved this question differently. The Nuremberg Tribunal generally allowed a party to admit an affidavit subject to calling the witness for cross-examination. Id. at 241-242. Apparently the Soviet war crimes report, however, admitted under Article 21 as a government report, was based on some 54,784 depositions of witnesses not subjected to cross-examination. Id. at 313. Contrarily,
A characteristic feature of the Yokohama trials was the large amount of documentary evidence that was introduced by the prosecution to support the charges and specifications and often by the defense to refute them. The defense contested the introduction of affidavits in the first trial but was overruled by the commission, which pointed out that the protection of the United States Constitution and the Articles of War was not available to the accused as a Japanese citizen and a former belligerent.
Spurlock, supra note 136, at 389. The difference probably arose because of the language of the SCAP regulation which allowed admission of “affidavits, depositions or other signed statements,” as well as “any diary, letter or other document, including sworn or unsworn statements, appearing to the commission to contain information relating to the charge.” See SCAP Letter, supra note 154.
182. At Tokyo, Justice Pal dissented, in part, based on the refusal of the Tribunal to admit eleven categories of evidence. Pal Opinion, supra note 159, at 641-42. He noted, “We had, however, admitted in evidence press release of the prosecuting nations when offered in evidence by the prosecution.” Id. at 642.
Those rulings of the Tokyo Tribunal must be compared with the decision at Nuremberg to permit Admiral Doenitz’s counsel, Kranzbuehler, to submit an interrogatory to Admiral Nimitz of the United States Pacific Fleet “to establish that the American Admiralty in practice interpreted the London Agreement in exactly the same way as the German Admiralty, and thus prove that the German conduct of sea warfare was perfectly legal . . . .” 8 NUREMBERG TRIAL PROCEEDINGS 548 (1946). Indeed, Telford Taylor pointed out in his Final Report to The Secretary of the Army on the Nuremberg War Crimes Trials that
[i]n order to shorten the proceedings, the prosecution used affidavits instead of oral testimony whenever possible. Such matters as the curric-ulum vitae of the defendants, organization charts of the ministries and other governmental agencies, and explanations of the functioning of quasi-governmental industrial bodies were usually presented in affidavit form subject, of course, to the right of the defense to call the affiants for cross-examination. A comparatively small number of affidavits on more controversial matters were also introduced. The defense, however, utilized affidavits in great quantity on a wide variety of subjects, but in order that the court proceedings should not be unduly prolonged, the prosecution waived cross-examination except in the most important instances.
TAYLOR, FINAL REPORT, supra note 136, at 89.
1 Taylor notes that the admission of “an overwhelming” number of documents was slowed by requiring the prosecution to read them into the record. TAYLOR, supra note 68, at 176. A better result, and a fairer one, might have been obtained by requiring the submission of a proper foundation for each document (even if, in most cases that foundation would have been as governmental records). He also says that the Tribunal, “aghast at the slow pace,” proposed a rule that only one prosecutor might cross-examine a witness, but that “[n]o such rule was ever adopted, and drawn-out examinations and cross-examinations continued.” Id. at 324.
2 Taylor notes that “the Tribunal’s failure to lay down any general rule left us uncertain of its action on future affidavit presentations.” Id. at 242.
3 See Pal Opinion, supra note 159, at 629.
In prescribing the rules of evidence for this Trial the Charter practically disregarded all the procedural rules devised by the various national systems of law, based on litigious experience and tradition, to guard a tribunal against erroneous persuasion, and thus left us, in the matter of proof, to guide ourselves independently of any artificial rules of procedure.
Id. Others, of course, thought the proceedings eminently fair. Joseph Keenan, the United States’ Chief of Prosecution at Tokyo stated: “I have never observed a proceeding in our own country where the rights of the accused were more scrupulously protected by any court. And regardless of what must have been at times a disagreeable duty, the American counsel assigned to the defense manfully performed their duty.” Joseph Keenan, Observations and Lessons from International Crim-inal Trials, 17 U. KAN. CITY L. REV. 117, 123 (1949).
1 See, e.g, Control Council Ordinance No. 7, supra note 138, n.130. “The tribunals shall not be bound by the technical rules of evidence. Id. at Article VII, available at http://www.yale.edu/lawweb/avalon/imt/imt07.htm#art7.
2 In re Homma, 327 U.S. 759, 760 (1946) (Murphy, J., dissenting).
Today the lives of Yamashita and Homma, leaders of enemy forces vanquished in the field of battle, are taken without regard to due process of law. There will be few to protest. But tomorrow the precedent here established can be turned against others. A procession of judicial lynchings without due process of law may now follow.
argues against the legality of their application to military com
 Article 84. A prisoner of war shall be
missions under current law.
tried only by a military court, unless the
existing laws of the Detaining Power
expressly permit the civil courts to try a
III. The Legality of Military Tribunals Under Current
member of the armed forces of the Detaining
Power in respect of the particular offence
alleged to have been committed by the pris-
Military commissions are still legal if they meet the stan
oner of war[;]192
dards required by current international law.189 Unless they pre
. . . .
cisely track a court martial, however, they may not, be used to
 Article 102. A prisoner of war can be val
try persons subject to the protection of GPW.190 The Manual for
idly sentenced only if the sentence has been
Courts Martial provides that military jurisdiction is exercised,
pronounced by the same courts according to
inter alia, by military commissions that, “[s]ubject to any appli
the same procedure as in the case of members
cable rules of international law or to any regulations prescribed
of the armed forces of the Detaining
by the President or by other competent authority . . . shall be
guided by the appropriate principles of law and rules of proce
. . . .
dure and evidence prescribed for courts-martial.”191 In addi-
Article 106. Every prisoner of war shall
tion, GPW requires certain procedural protection for POWs, the
have, in the same manner as the members of
most important of which, in relation to the questions here, are
the armed forces of the Detaining Power, the
right of appeal or petition from any sentence
pronounced upon him, with a view to the
1 This article does not constitute an analysis under U.S. constitutional law. Under the standards articulated in Yamashita, however, war crimes charges against a military accused are subject to the standards of international law, and specifically the law of war. In re Yamashita, 327 U.S. 1, 14-15 (1946).
2 See UCMJ art. 21 (2002).
3 See GPW, supra note 3, arts. 4-5; supra secs. I.B-I.C.
4 MCM, supra note 3, pt. II. That language is, of course, similar to that found in the pre-World War II 1928 MCM. Compare id. with 1928 MCM, supra note 120, sec. IIA. Thus, for example, according to the current MCM, a POW could be tried before a military commission for engaging in unauthorized communications with the enemy. MCM, supra note 3, pt. IV, ¶ 28c(6)(a). For extensive discussion of this point, see Major Timothy MacDonnell, Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinction Between the Two Courts, ARMY LAW., Mar. 2002. MacDonnell concluded that
based on Articles 84, 85, and 102, the United States could only use military commissions to try prisoners of war when they are used to try U.S. military personnel. Because the United States does not currently use commissions to try its military personnel, it could not use them to try prisoners of war.
Id. at 31.
1 See GPW, supra note 3, art. 84.
2 Id. art. 102. The language of Article 102 seems self-explanatory. Thus, for example, Field Manual 27-10 interprets Article 102 as follows:
Prisoners of war, including those accused of war crimes against whom judicial proceedings are instituted, are subject to the jurisdiction of United States courts-martial and military commissions. They are entitled to the same procedural safeguards accorded to military personnel of the United States who are tried by courts-martial under the Uniform Code of Military Justice or by other military tribunals under the laws of war.
FM 27-10, supra note 74, sec. 178(b), at 69 (emphasis added). In a public forum at New York Law School on 5 March 2002, Professor Ruth Wedgewood, after delivering a talk entitled “Military Commissions, Unlawful Combatants and Terrorism as a Form of War,” stated that Article 102’s guarantees only applied to sentencing, as opposed to trial procedures, and that in any case, U.S. military personnel could be tried by military tribunals. Professor Wedgewood has been repeatedly cited as an authority on this subject. Accordingly, her position is noteworthy. See, e.g., DOD News Briefing by Secretary Donald Rumsfeld & General Richard Myers (8 Feb. 2002), available at http://www.defenselink.mil/news/Feb2002/t02082002_t0208sd.html) (stating Professor Ruth Wedgewood’s position that U.S. military personnel could be tried by military tribunals). If Professor Wedgewood is correct, it does not change the substantive position of POWs facing trial before a military commission. The UCMJ permits only very limited sentences against U.S. military personnel tried without the full procedural and evidentiary rights of a court-martial. See UCMJ art. 15 (2002). It also permits trials before military commissions for spying and espionage. Id. art. 104, 106.
The intention of the GPW is made clear in the commentary to Article 102 and the structure of the convention including the content of other articles. The structural analysis is made clear by the Report of Committee II: “The provisions relative to judicial proceedings are set forth in logical sequence in three parts; (a) General Observations [current Articles 99 to 101]; (b) Procedure [current Articles 102 to 107]; and (c) Execution of penalties [current Article 108].” Report of Committee II, supra note 82, at 571. If Article 102 was not applicable to all procedural issues, but instead limited to sentencing, it seems highly incongruous that the drafters placed it as the first article of the Procedure provisions rather than contiguous with the following part on Execution of Penalties.
quashing or revising of the sentence or the who may have planned the September 11 attacks, even if they reopening of the trial.194 are entitled by GPW Article 4 to POW status. Undoubtedly, individuals who conspire to commit war crimes, including the
The requirement of a Detaining Power to accord detainees mass murder of civilians on 11 September 2001, may be the same procedure as the Detaining Power gives to the mem-brought to the bar of justice. But equally without doubt, those bers its own armed forces bears significance when analyzing defendants who properly fall within the GPW must have the the current proposal for military tribunals.195 The Military same evidentiary procedural standards found in courts-martial Order of 13 November 2001 applies to any non-U.S. citizen under the UCMJ which governs trials of members of the armed who is a member of al Qaeda.196 This includes all members of forces of the United States.197 al Qaeda captured during combat operations in Afghanistan, and it encompasses any surviving leaders of the organization
1 GPW, supra note 3, art. 106.
2 The discussion in Yamashita of Article 63 of the Geneva Convention of 1929, bolsters this analysis. Article 63 provided that “Sentence may be pronounced against a prisoner of war only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power.” See http://www.yale.edu/lawweb/avalon/lawofwar/geneva02.htm#art63. The Court determined that “examination of Article 63 in its setting in the Convention plainly shows that it refers to sentence “pronounced against a prisoner of war” for an offense committed while a prisoner of war, and not for a violation of the law of war committed while a combatant.” In re Yamashita, 327 U.S. 1, 21 (1946). The court based its reasoning on an analysis of the placement of Article 63 in a chapter entitled “Penalties Applicable to Prisoners of War,” and the placement of that chapter in section V, “Prisoners’ Relations with the Authorities” as part of Title III, “Captivity.” See id. “The three parts of Chapter 3, taken together,” the Court said,
are thus a comprehensive description of the substantive offenses which prisoners of war may commit during their imprisonment, of the penalties which may be imposed on account of their offenses, and of the procedure by which guilt may be adjudged and sentence pronounced. We think it clear, from the context of these recited provisions, that part 3 and Article 63 which it contains, apply only to judicial proceedings directed against a prisoner of war for offenses committed while a prisoner of war.
Article 85 of GPW, however, contains a provision not found in the 1929 Convention analyzed in In re Yamashita. It provides that “[p]risoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.” GPW, supra note 3, art. 85.
The impact of that change on the Yamashita analysis is clear. The provisions surrounding Article 85, especially Articles 84 and 102, are all found in Chapter III, “Penal and Disciplinary Sanctions,” of section IV, “Relations Between Prisoners of War and the Authorities.” See id. ch. III. Under the Yamashita analysis, Chapter III of the 1949 Convention was clearly designed to apply to judicial proceedings directed against a POW for offenses committed before capture. That was unquestionably the intent of the Convention’s drafters. In discussing Article 74 of the Stockholm Draft (the precursor to GPW Article 85), the representative of the Netherlands
pointed out that the 1929 Convention only dealt with crimes committed during captivity. That view had been adopted by the Supreme Court of the United States of America . . . . The Conference of Government Experts of 1947 considered it reasonable, however, not to deprive a prisoner of war of the protection of the Convention on the mere allegation that he had violated the laws and customs of war, but to leave him under the protection of the Convention until such violation had been proven in a court of law, in other words until he had been sentenced by a court of such a crime or offense.
2 FINAL RECORD, supra note 47, at 318 (Committee II, 18th mtg.) (emphasis added). Thus, following that change from the 1929 Convention, and given the drafters’ intent, there is simply no legitimate argument that the reasoning of the Court in Yamashita is now applicable.
In the case of In re Quirin, the Court said:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
317 U.S. at 30-31.
196. Bush Order, supra note 15, sec. 2(a) (“The term ‘individual subject to this order’ shall mean any individual who is not a United States citizen . . . is or was a member of the organization known as al Qaeda . . . .”).
IV. The Quirin Standards Developed for World War II and those who can only assert the current minimal international Tribunals Do Not Meet Current Standards Either standards for a fair criminal trial. The retention of the Quirin Under the Uniform Code of Military Justice or Current evidentiary rules and the denial of full appellate rights both rep-International Law resent serious failures to meet those required standards. Unless the proposed rules for the current military tribunals are modi-
In his dissent in Homma v. Patterson,198 Justice Murphy fied, their application is certainly improper in any trial of a per-excoriated the results of a trial held under the Quirin standards, son protected as a POW. characterizing them as a precedent for “judicial lynchings.”199
Article 36(a) of the UCMJ provides that the President may 1. The Quirin Rules of Evidence Did Not Provide a prescribe procedural and evidentiary rules for tribunals that Fair Trial should “so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial The Quirin rules of evidence were based directly upon the of criminal cases in the United States district courts,” but which portion of President Roosevelt’s Order of 3 July 1943, which must in any case be consistent with the UCMJ.200 provided that “[s]uch evidence shall be admitted as would, in
the opinion of the President of the Commission, have probative
President Bush’s Military Order of 13 November 2001, value to a reasonable man.”202 based as it is upon Quirin precedent, and Commission Order 1 of 21 March 2002,201 give rise to a number of problems both in As applied in Quirin and in tribunals following World War the instance of those prisoners entitled to treatment under GPW, II, the evidentiary rule at issue allowed unfounded affidavit evi
197. The current Manual for Courts Martial includes language similar to the 1928 MCM but modified by subsequent sources of international law.
(2) Military commissions and provost courts for the trial of cases within their respective jurisdictions. Subject to any applicable rule of inter-national law or to any regulations prescribed by the President or by other competent authority, military commissions and provost courts shall be guided by the appropriate principles of law and rules of procedures and evidence prescribed for courts-martial.
MCM, supra note 3, pt. I (emphasis added).
1 327 U.S. 759 (1946).
2 Id. at 759.
This nation’s very honor, as well as its hopes for the future, is at stake. Either we conduct such a trial as this in the noble spirit and atmosphere of our Constitution, or we abandon all pretense to justice, let the ages slip away and descend to the level of revengeful blood purges.
. . . . [N]either clearer proof of guilt nor the acts of atrocity of the Japanese troops could excuse the undue haste with which the trial was conducted or the promulgation of a directive containing such obviously unconstitutional provisions as those approving the use of coerced confessions or evidence and findings of prior mass trials. To try the petitioner in a setting of reason and calm, to issue and use constitutional directives and to obey the dictates of a fair trial are not impossible tasks. Hasty, revengeful action is not the American way.
Id. at 759-60 (Rutledge, J., dissenting).
200. UCMJ art. 36(a) (2002). For instance, the MRE provide that “an involuntary statement or any derivative evidence therefrom may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence.” MCM, supra note 3, MIL. R. EVID.
304. Also “the privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Article 31 are applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to the individual asserting the privilege shall be applied.” Id. MIL. R. EVID. 301. Under MRE 304,
[a] person subject to the code who is required to give warnings under Article 31 may not interrogate or request any statement from an accused or a person suspected of an offense without first: (1) informing the accused or suspect of the nature of the accusation; (2) advising the accused or suspect that the accused or suspect has the right to remain silent; and (3) advising the accused or suspect that any statement made may be used as evidence against the accused or suspect in a trial by court-martial.
Id. MIL. R. EVID. 304 (e)(3); see id. MIL. R. EVID. 802 (prohibiting the admission of hearsay evidence); id. MIL. R. EVID. 701 (limiting opinion by lay witnesses); id. MIL. R. EVID. 601 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”); see also United Nations International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 14, 999 U.N.T.S. 171 (containing a privilege against self incrimination).
1 MCO No. 1 “prescribes procedures” pursuant to President Bush’s Military Order. MCO No. 1, supra note 2, para. 1.
2 7 Fed. Reg. 5103 (July 3, 1942).
dence, suspect hearsay, and evidence obtained through unfair vit evidence not subject to any form of reasonably available coercion.203 Apparently, the Bush Administration intends to rebuttal;209 (3) failure to produce classified exculpatory eviapply those same evidentiary standards to the proposed tribu-dence;210 and (4) other evidentiary rulings involving standards nals. Not only does the Bush Order204 and Commission Order and issues now recognized as essential to a fair trial.211 1205 substantially adopt the evidentiary language of the Roosevelt Order, but there have been repeated references to One may derive the current minimum standards of evidence procedural standards comparable to those of the Quirin com-by examining the Military Rules of Evidence (MRE),212 those mission.206 As discussed above,207 military commissions adopted by the International Criminal Tribunals for the former employing the Quirin rules interpreted the standard “probative Yugoslavia213 and Rwanda,214 which are similar,215 and those value to a reasonable person” to permit (1) evidence obtained developed for the International Criminal Court,216 which are involuntarily and by unethical means;208 (2) unfounded affida-even more extensive.217 When compared to currently accepted
1 See supra notes 168-187 and accompanying text.
2 “[A]dmission of such evidence as would, in the opinion of the presiding officer of the military commission . . . have probative value to a reasonable person.” Bush Order, supra note 15, sec. 4(C)(3). Except for the bow to gender neutrality, the operative language is precisely the same.
3 MCO No. 1 makes its acceptance of the Quirin standard clear:
Evidence shall be admitted if, in the opinion of the Presiding Officer (or instead, if any other member of the Commission so requests at the timethe Presiding Officer renders that opinion, the opinion of the Commission rendered at that time by a majority of the Commission), the evidencewould have probative value to a reasonable person.. . . .Subject to the requirements [above] concerning admissibility, the Commission may consider any other evidence including, but not limited to,testimony from prior trials and proceedings, sworn or unsworn written statements, physical evidence, or scientific or other reports.
MCO No. 1, supra note 2, para. 6(D)(1), (3).
The statements in MCO No. 1 that “[t]hese procedures shall be implemented and construed so as to ensure that any such individual receives a full and fair trial before a military commission,” id. para. 1, and that “[t]he Commission shall . . . proceed impartially and expeditiously, strictly confining the proceedings to a full and fair trial of the charges, excluding irrelevant evidence,” id. para. 6(B)(2), are not, in themselves, substitutes for failure to provide evidentiary and procedural requirements of the Geneva Convention. If the promise of a full and fair trial was itself a sufficient guarantee, it would by necessity incorporate by reference the rights guaranteed under the UCMJ, rendering the bulk of MCO No. 1 moot.
206. See Military Commissions: Hearing Before U.S. Senate Armed Services Comm., 108th Cong. (2001) (testimony of Secretary of Defense Donald Rumsfeld), available at http://www.defenselink.mil/speeches/2001/s20011212-secdef.html. Secretary Rumsfeld stated,
[F]ederal rules of evidence often prevent the introduction of valid factual evidence for public policy reasons that have no application in a trial of a foreign terrorist. By contrast, military tribunals can permit more inclusive rules of evidence—a flexibility that could be critical in wartime, when it is often difficult, for example, to establish chains of custody for documents or to locate witnesses. Military commissions allow those judging the case to hear all probative evidence—including evidence obtained under conditions of war—that could be critical to obtaining a conviction.
Id. See Ray Rivera, Bush Looks to ‘42 Case to Justify Military Tribunals for Terrorism, SEATTLE TIMES, Dec. 7, 2001, available at http://seattletimes.nwsource.com/ html/nationworld/134374561_tribunals05m.html.
1 See supra sec. II (B)(3)(b).
2 See supra notes 168-174 and accompanying text.
3 See supra note 181.
4 In at least one instance, it appears that relevant evidence was clearly not provided to post-Nuremburg defendants. Article 6(b) of the Nuremberg Charter and Control Council law No. 10, in paragraph 1(b) of Article II, both recognize without qualification the “killing of hostages” as a war crime. The defendants in the Hostages Trial were charged with violations of those provisions, although the Tribunal held that subject to a number of conditions, the killing of reprisal victims or hostages to guarantee the peaceful conduct in the future of the populations of occupied territories was legal. G. Brand, The War Crimes Trials and the Laws of War, 26 Y.B. INT’L L. 414, 426 (1949). The defendants did not, apparently, have available a “Top Secret” appendix to a draft 1944 U.S. Army plan for the occupation of Germany entitled, “Measures Which May Be Taken to Enforce the Terms of Surrender or in the Event of No Surrender to Compel the Enemy to Comply with the Laws of War.” That plan provided for four categories of action which could be taken as sanctions or reprisals to enforce compliance with the terms of surrender or the rules of war, including the taking and execution of hostages. U.S. Army, Measures Which May Be Taken to Enforce the Terms of Surrender or in the Event of No Surrender to Compel the Enemy to Comply with the Laws of War (n.d.) (copy on file with National Archives, Records of USGCC Record Group 260, Stack 390, Row 40, Compartment 17, Shelf 3, Box 17, Folder 4).
5 See Hyder, supra note 173, at 137.
6 See MCM, supra note 3, pt. III.
standards for trials of war criminals, the Quirin rules of evi-dent.222 The President’s military order attempts to eliminate any dence are unacceptable for a trial under current international other appeal by providing that the “military tribunals shall have law.218 exclusive jurisdiction”223 over the commission defendants, and
2. The Right of Appeal Provided by Commission Order 1 Does
the[se] individual[s] shall not be privileged
Not Meet UCMJ Standards
to seek any remedy or maintain any proceed
ing, directly or indirectly, or to have any such
The appeals procedure provided by Commission Order 1
remedy or proceeding sought . . . in any court
falls short of that available in a court-martial. The Order pro
of the United States, or any State thereof[,] .
vides for a multi-stage series of reviews by: (1) the appointing
. . any court of any foreign nation, or . . . any
authority;219 (2) a review panel consisting of three military
officers;220 and (3) the Secretary of Defense,221 or if the Secre
tary of Defense is not the final reviewing authority, the Presi
1 INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, RULES OF PROCEDURE AND EVIDENCE (as amended through Dec. 13, 2001), available at http:// www.un.org/icty/basic/rpe/IT32_rev21.htm#Rule%2042 [hereinafter ICTY Rules].
2 INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, RULES OF PROCEDURE AND EVIDENCE (as amended through May 27, 2001), available at http://www.ictr.org/ ENGLISH/rules/260503/270503e.pdf [hereinafter ICTR Rules].
3 Those rules are sometimes cited as providing a similar regime to the World War II commissions because they permit a court to “admit any relevant evidence which it deems to have probative value.” ICTY Rules, supra note 213, R. 89(C). See, e.g., Joseph L. Falvey, Jr., United Nations Justice or Military Justice: Which Is the Oxymoron?, 19 FORDHAM INT’L L.J. 475, 518 (1995) (asserting that the rules follow the example of, or are consistent with, the World War II tribunals); Howard
S. Levie, The Statute of the International Tribunal for the Former Yugoslavia: A Comparison with the Past and a Look at the Future, 21 SYRACUSE J. INT’L L. & COM. 1, 17 (1995).
1 See INT’L CRIM. CT. R. P. & EVID., available at http://www.icc-cpi.int/library/basicdocuments/rules(e).html.
2 The ICC rules include protections for the following: (1) “privileged communications with attorneys and a . . . medical doctor, psychiatrist, psychologist or counselor, [sic] [and] religious clergy;” (2) a right against self-incrimination by a witness; and (3) a privilege against parental, spousal, or child testimony. Id. R. 74-75.
3 An additional and separate argument may be made that any accused who is a combatant unprivileged under GPW is still entitled, at minimum to the protection of Additional Protocol 1 (1977) to the Geneva Conventions of 1949. Article 75 of Protocol 1, “Fundamental Guarantees” provides that
[n]o sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
(a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shallafford the accused before and during his trial all necessary rights and means of defence;. . . .
(d) Anyone charged with an offence is presumed innocent until proven guilty according to law;
(e) Anyone charged with an offence shall have the right to be tried in his presence;
(f) No one shall be compelled to testify against himself or to confess guilt;
(g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendanceand examination of witnesses on his behalf under the same conditions as witnesses against him;. . . .
(i) Anyone prosecuted for an offence shall have the right to have the judgment pronounced publicly; and
(j) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised . . . .
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 75, June 8, 1977, 1125 U.N.T.S. 3. The United States, however, has not ratified Protocol 1, and would doubtless oppose application of its guarantees to unprivileged combatants. See id.
1 MCO No. 1, supra note 2, para. 6(H)(3) (holding that this only applies if the Secretary of Defense is not the appointing authority).
2 Id. para. 6(H)(4). The panel may include civilians commissioned as officers for that purpose, and must include at least one experienced judge. It must disregard any variance from required procedures “that would not materially have affected the outcome of the trial . . . .” Id.
3 Id. para. 6(H)(5). The Secretary of Defense must, upon review, either return the case for further proceedings or forward it to the President with a recommendation for disposition (unless he is designated as the final reviewing authority under section 4(C)(8) of the President’s Military Order). Id.
4 Id. para. 6(H)(6). If the Secretary of Defense has been designated, he may approve or disapprove findings or change a finding of guilty to one of guilty of a lesser-included offense, or mitigate, defer, or suspend sentence. Id.
5 Bush Order, supra note 15, sec. (7)(b)(1).
These provisions differ substantially from the rights of appeal provided to a member of the armed forces of the United States. Detailing service members’ entire range of available appellate proceedings is beyond the scope of this article;225 however, they include not only review by the convening authority, but also by a Court of Criminal Appeals,226 and in certain cases, the Court of Appeals for the Armed Forces,227 and, by writ of certiorari, to the Supreme Court of the United States.228
Article 106 of GPW provides:
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.229
That Article 106 right of appeal is included among the procedural rights discussed by the drafters of GPW.230 Thus, to the extent the Bush Order and Commission Order 1 deny and attempt to limit the appeal rights of a POW, it is the thesis of this article that they will result in a breach of GPW.231
Taken together, a tribunal that tries POWs using Quirin-type evidentiary rules, combined with restricted appeal rights, is both potentially unfair and in direct violation of governing law. The effect of such tribunals on the development and application of the law of war might carry enough weight for military lawyers to oppose their use. Under the circumstances here discussed, however, there is a more compelling reason for opposing the use of commissions. As applied to those with legitimate claims to POW status, the convening of and partici
224. Id. sec. (7)(b)(2).
pation in an unlawful tribunal is a war crime, with potentially serious ramifications for all involved.
V. Convening of and Participation in an Unfair Tribunal Is a War Crime
In United States v. Uchiyama,232 a U.S. military commission tried those Japanese officials involved in the Japanese military commission, which tried two captured American who participated in the carpet bombimg of Kobe and Osaka. In the bombing raid, the Americans inflicted heavy civilian casualties. The Japanese military commission tried the Americans, and convicted and then executed them. Those officials included the commanding general of the Japanese Fifteenth Area Army, his chief of staff, his judicial officer, the three members of the Japanese commission, the prosecutor, and the executioner.233
The prosecution’s opening statement before that U.S. commission is significant.
We are now charging the accused with having failed to have applied to these prisoners of war the type of procedure that they were entitled to. In other words they applied to them a special type of summary procedure which failed to afford them the minimum safeguards for the guarantee of their funda-mental rights which were given them both by the written and customary laws of war.234
The prosecution finessed the POW/Geneva rights question by accepting that one charged with war crimes was not entitled to assert those rights for actions taken before capture. It instead charged that the proceedings in the Japanese trial were “illegal, unfair, false, and null.”235 The commission did not issue any
1 See generally UCMJ arts. 66-67, 69 (2002). In an opinion column in the New York Times, White House Counsel Alberto Gonzales said, “The order preserves judicial review in the civilian courts.” Alberto Gonzales, Martial Justice, Full & Fair, N.Y. TIMES, 30 Nov. 2001, at A27. While that right of review does not appear in the President’s Order, Mr. Gonzales’ statement may indicate an intent to preserve it.
2 UCMJ art. 66; MCM, supra note 3, R.C.M. 1203.
3 MCM, supra note 3, R.C.M. 1204.
4 Id. R.C.M. 1205.
5 GPW, supra note 3, art. 106.
6 See Report of Committee II, supra note 82.
7 See GPW, supra note 3, art. 130.
8 See generally Tried at Yokohama, supra note 6.
9 Id. at 1.
10 United States v. Uchiyama, Trial Transcript, Case-35-46, War Crimes Branch Case Files, Records of The Judge Advocate General, Record Group 153 (Yokohama, 18 July, 1947), at 20 (emphasis added) (on file with author).
decision stating the basis for its findings. The reviewing Staff Both the GPW238 and the domestic law of the United States239
Judge Advocate’s analysis, however, makes it clear that themake it clear that failure to accord fair procedural and eviden-
American commission found the Japanese trial, while legaltiary standards in a trial of a POW is a war crime of substantial
under international and Japanese law, so unfair as to constitutemagnitude. If Uchiyama is valid precedent, and 18 U.S.C. §
a war crime.236 Thus, relevant to any current military tribunal2441 seems to say it is, then participants in any U.S. military tri
are the specific actions the United States alleged were unfair,bunal that followed the Quirin evidentiary and procedural stan
which included:dards should seek counsel. Clearly, an unfair war crimes trial of a POW violates both the GPW and current U.S. and interna
 the prosecution offered, and the tribunal tional law. To imagine otherwise would set the law of nations accepted as evidence, an interrogation report back to the dark days of history when the fate of the captive on which the interrogator had obtained the rested on the whim of their captors. signatures of the American prisoners, “without any attempt to verify the genuineness of the document”; VI. Conclusion . . . .
 the members of the tribunal were disqual-A military tribunal must meet current standards of fundaified . . . by reason of having participated in mental rights under the written and customary laws of war. If the pre-trial preparation of the prosecution’s such a tribunal tries a POW, it must follow the procedural and case; evidentiary standards of a court-martial. The Quirin rules of . . . . World War II do not meet that standard. Several solutions to
 the members . . . did not exercise free and this problem exist: (1) the tribunal can employ the same rules independent judgment; [and] as a general court-martial, which by their nature comply with . . . . fundamental international standards of fairness; or (2) simply
 no attempt was made by the tribunal to try POW defendants before a court-martial or U.S. district court ascertain the facts concerning the offenses rather than before a military commission.240 It is in the interest alleged against the accused . . . .237 of all civilized societies to apprehend, try or punish the perpe
trators of mass murders, including those of 11 September 2001. It is also, unquestionably, in the long-term interest of civiliza
1 Id. Charges and Specifications at 4, ¶ 4.
2 Id. Review of Staff Judge Advocate, 1 July 1948, at 29 (on file with author).
4 Article 130 of GPW provides:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.
GPW, supra note 3, art. 130 (emphasis added).
239. 18 U.S.C. § 2441 (2000). Section 2441 provides in part :
(a) Offense.—Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances.—The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition.—As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party . . . .
240. While not precisely similar, the rights accorded in a U.S. District Court criminal trial are sufficient to satisfy the GPW requirement that a POW “can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedures as in the case of members of the armed forced of the Detaining Power.” GPW, supra note 3, art. 102. As noted in United States v. Berrey, “The Manual, including those Rules [for Court-Martial], was to conform to Federal practice to the extent possible, except where the Uniform Code of Military Justice requires otherwise or where specific military requirements render such conformity impracticable.” 28 M.J. 714, 730 (N.M.C.M.R. 1989); see UCMJ, art 36 (2002); MANUAL FOR COURTS-MARTIAL, UNITED STATES, at A21-1 (1984).
tion’s advancement that these procedures be fair and in accord with the advances in international law over the past fifty years. In light of Uchiyama and the doctrine it represents, it seems obvious that no informed judge advocate advising a tribunal or any of its potential members could permit the proceeding to go forward if a defendant had not been determined to be unprotected by POW status before a competent tribunal under AR 190-8. To do otherwise not only provides individuals who may pose a grave threat to the United States with a challenge to their convictions; but also potentially exposes those involved with the tribunals to liability as war criminals.
Because Article 18 of the UCMJ provides for general court-martial jurisdiction over any possible tribunal defendant,241 the safety of a military trial may protect both the legitimate state interest in national security and safeguard against potential physical assaults against the trial process itself. At the same time, the demonstrated fairness of the UCMJ would shield the legitimate right of POW defendants to evidentiary and procedural safeguards. That compromise may be the most workable solution legally available to the United States. Since trials under the UCMJ exceed all reasonable standards of fairness, the answer to the government’s dilemma may lie directly under its nose.
241. “General courts-martial 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. 18.