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by Mitchell L. Lathrop

November 2001

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Copyright, 2001, Mitchell L. Lathrop. All rights reserved.


by Mitchell L. Lathrop [1]


On November 13, 2001, President Bush signed an Executive Order allowing thegovernment to try accused terrorists before military commissions rather than in federalcourts. The Executive Order generated considerable debate and controversy among civillibertarians and members of the public at large. Much of this debate highlights a lack ofunderstanding of how military commissions established under the Executive Order willfunction. It is important to analyze what the Executive Order does, and does not, do.

Three days after the September 11th attacks on the Pentagon and the Word Trade Center,and the crashing of a civilian airliner in Pennsylvania, the President declared a nationalemergency and sent the required report to Congress. The same day Congress respondedby passing a joint resolution authorizing the use of U. S. Armed Forces against thoseresponsible for the September 11th attacks launched against the United States.[2] InOctober 2001 Congress took further steps against terrorism by passing the Uniting andStrengthening America by Providing Appropriate Tools Required to Intercept andObstruct Terrorism Act of 2001 (“USA Patriot Act”), which gave expanded powers tolaw enforcement and government agencies to act against suspected terrorists.[3] ThePresident was also given the authority to confiscate the property of terrorists and theirsupporters.[4]

The Congressional intent was clear that all necessary steps must be taken to eliminate andprotect against terrorism. The President’s declaration of a war on terrorism had met withcomplete bi-partisan support from the Congress.


The power to make all laws necessary and proper for carrying the provisions of theConstitution into execution rests with Congress. That applies not only to its own powers,but also all other powers vested by the Constitution in the Government of the UnitedStates, or in any department or officer thereof.[5] At the same time, the President is thecountry’s chief executive, vested with all executive power, and is Commander-in-Chiefof the U.S. Armed Forces.[6] Among the numerous laws passed by Congress and signedinto law by the President is the War Powers Resolution,[7] which expressly provides:

It is the purpose of this chapter to fulfill the intent of the framers of theConstitution of the United States and insure that the collective judgment ofboth the Congress and the President will apply to the introduction ofUnited States Armed Forces into hostilities, or into situations whereimminent involvement in hostilities is clearly indicated by thecircumstances, and to the continued use of such forces in hostilities or insuch situations.[8]

Constitutionally designated as the Commander-in-Chief of all United States ArmedForces, the President, under the War Powers Resolution, may introduce U. S. ArmedForces into hostilities under three circumstances: (1) when Congress issues a declarationof war; (2) when Congress passes specific statutory authorization; or (3) when there is anational emergency created by an attack upon the United States, its territories orpossessions, or its armed forces.[9]

Few will disagree that the bombings of the U.S. embassies in Kenya and Tanzania, and ofthe U.S.S. Cole, as well as the assaults of September 11th, constituted attacks upon theUnited States. As such, any of these events gave the President the authority to exercisehis war power to authorize a military response.

The power of the President under such circumstances is not without limitation.[10] ThePresident must first declare a national emergency.[11] A report to Congress must besubmitted by the President.[12] Congress must then give the President express statutoryauthority to continue the use of U.S. military forces during the period of nationalemergency or the President’s authority automatically ceases after sixty days and thearmed forces must be withdrawn.[13] Congress, if it so chooses, can even cause thePresident to cease military action in a shorter period.[14]

The American Criminal Justice System

Persons accused of crimes in the United States are presumed innocent until proven guilty.That concept is a long-recognized cornerstone of American democracy. The accused isentitled to be tried by a jury of his or her peers, and no person may be deprived of life,liberty, or property without due process of law.[15]

At the same time, procedural rules and court decisions - however well intentioned - haveresulted in lengthy delays in bringing criminals to justice. In some cases, criminals slipthrough the justice net altogether.[16] This is not meant to cast criticism on the Americansystem of justice. It is merely to point out that the system is not perfect. The commonadage, “justice delayed is justice denied,” cannot be overlooked.

Criminal defense lawyers are typically given wide latitude in representing their clients.Some resort to extensive use of the media as an adjunct to their courtroom presentations.Public opinion is used to sway juries notwithstanding instructions given by the court.Abuses are common. While the American system is still one of the best ever devised byhumankind, it has readily identifiable and elusive flaws. All too often lawyers and thepublic alike forget that it is not the duty of a criminal defense lawyer to secure anacquittal for his or her client. It is his or her duty to (1) insure that only legal andcompetent evidence is introduced against the client, and (2) to present all legal andcompetent evidence which may be available on the client’s behalf.

When the deficiencies of the American criminal justice system are coupled with thearsenal of procedural devices available to accused persons, it seems apparent why thePresident decided to issue his Executive Order. For example, consider the case of aterrorist who has never set foot in the United States and is the citizen of a foreign country.He has actively aided terrorists who have committed terrorist acts against the UnitedStates. He is captured by U.S. miliary personnel and transported against his will to theUnited States for trial. Immediately apparent are the issues of the legitimacy of theexercise of criminal jurisdiction over him by the United States, i.e., his arrest in the firstinstance, and his involuntary transportation to the United States. Then come the issues ofthe selection of the proper jurisdiction for the trial, the application of the laws of his owncountry, the selection of a jury, and even personal and subject matter jurisdiction of U.S.courts. Any qualified defense lawyer would certainly challenge jurisdiction and a seriesof complicated appeals would inevitably result. In the final analysis, a plea bargain couldwell result just to avoid the interminable delays.[17]

National security considerations further reinforce the President’s decision. Classifiedinformation cannot be disclosed to those not authorized to receive it. To force thegovernment to disclose its methods and techniques for information gathering againstterrorists in open court would be foolhardy at best and would compromise itseffectiveness permanently. Disclosing identities could result in the loss of intelligenceagents at home and abroad. The myriad of evils which could flow from public disclosureof national security information cannot be overestimated.

The Executive Order

By its very terms, the Executive Order applies only to non-U.S. citizens. U.S. citizenscontinue to enjoy the same constitutional rights which they had before September 11th.A U.S. citizen cannot be tried by a military tribunal unless he or she is a member of theU.S. Uniformed Services, in which case court-martial jurisdiction would attach.[18]

The Executive Order does not give the President sweeping or unlimited powers to orderthe trial of terrorists by military commission. Its applicability is limited and subject to anumber of jurisdictional prerequisites.

The Executive Order by its own terms applies only on an individual, case-by-case basis.As a threshold procedure, to invoke the provisions of the Executive Order, the Presidentmust make two essential determinations, which must be set forth in writing. First, thePresident must determine that the individual who is made subject to the Executive Order:

(1) is or was a member of the organization known as al Qaida;

(2) has engaged in, aided or abetted, or conspired to commit, acts ofinternational terrorism, or acts in preparation therefor, that have caused,threaten to cause, or have as their aim to cause, injury to or adverse effectson the United States, its citizens, national security, foreign policy, oreconomy; or

(3) has knowingly harbored one or more individuals as described in (1) or(2) above.

Second, the President must make a determination that it is in the interest of the UnitedStates that the individual be subject to the Executive Order, i.e., the individual should betried by a military commission. Just as U.S. courts-martial can sit anywhere in theworld,[19] so can the military commissions appointed under the Executive Order.[20]

The Executive Order gives the Secretary of Defense, as a military function, the power toissue orders and regulations for the appointment of military commissions. The phrase “asa military function” is important, since it presupposes that many of the provisions foundin military law will be applied.

When issuing orders and regulations for the trial of individuals made subject to theExecutive Order by the President, the Secretary of Defense must, at a minimum, providefor a full and fair trial, with the military commission sitting as the trier of both fact andlaw. The presiding officer of the military commission, who would presumably be aMilitary Judge qualified under the Uniform Code of Military Justice (“UCMJ”),[21] wouldrule on the admissibility of evidence.[22] Proffered evidence must be found to haveprobative value to a reasonable person, and in that respect the more formal Federal Rulesof Evidence[23] are relaxed under the Executive Order.

The Executive Order mandates the protection of classified information, and the Secretaryof Defense is directed to promulgate specific rules covering the handling of, admissioninto evidence of, and access to classified materials and information. Presumably thoseissues will be handled by closing the proceedings to all but those cleared for access toclassified information and limiting access to transcripts of military commissionproceedings which involve classified material.

The accused is expressly given the right to defense counsel. The rules of proceduregoverning the conduct of the prosecution by attorneys designated by the Secretary ofDefense, and the conduct of the defense by attorneys for the individual defendant, willalso be promulgated by the Secretary of Defense. Military law and precedents, as well asDisciplinary Rules, already cover such matters in detail, and can be easily modified to fitthe special circumstances of military commission trials under the Executive Order.

As is the case in most courts-martial, conviction may be had only upon the concurrenceof two-thirds of the members of the commission present at the time of the vote, amajority being present. Similarly, sentences can only be imposed upon the concurrenceof two-thirds of the members of the commission present at the time of the vote, amajority being present.[24] Sentences may not be carried out, however, until the record ofthe trial has been reviewed and a final decision has been made by the President, or by theSecretary of Defense if he is so designated by the President for that purpose.

Historical Precedents

A frequently heard argument challenging the President’s power to authorize the use ofmilitary commissions to try non-citizen terrorists is that no formal declaration of war hasbeen made by Congress. That same argument was made in 1862 when four vessels wereseized as prizes of war for failing to observe the blockade of the Confederate states whichhad been imposed by the President.[25] The U.S. District Courts having jurisdiction[26] allruled that the President had lawful authority to impose the blockade notwithstanding theabsence of a formal declaration of war by Congress. The district courts held the vesselswere properly prizes of those Union supporters who had captured them. The cases wereappealed to the U.S. Supreme Court.

The Supreme Court pointed out that when the seizures occurred Congress had notformally declared war, but the seizures were upheld and the decisions of the districtcourts affirmed. As the high court observed:

If a war be made by invasion of a foreign nation, the President is not onlyauthorized but bound to resist force by force. He does not initiate the war,but is bound to accept the challenge without waiting for any speciallegislative authority. And whether the hostile party be a foreign invader,or States organized in rebellion, it is none the less a war, although thedeclaration of it be “unilateral.” Lord Stowell (1 Dodson, 247) observes,“It is not the less a war on that account, for war may exist without adeclaration on either side. It is so laid down by the best writers on the lawof nations. A declaration of war by one country only, is not a merechallenge to be accepted or refused at pleasure by the other.”[27]

The use by the United States of military commissions to try specified crimes in time ofwar is not new. In Ex Parte Quirin (“Quirin”),[28] the U.S. Supreme Court upheld use of amilitary tribunal to try German saboteurs who were caught in the United States duringWorld War II. Denying a petition for a writ of habeas corpus brought by the Germans,the high court pointed out:

(1) That the charges preferred against petitioners on which they are beingtried by military commission appointed by the order of the President ofJuly 2, 1942, allege an offense or offenses which the President isauthorized to order tried before a military commission. (2) That themilitary commission was lawfully constituted. (3) That petitioners areheld in lawful custody, for trial before the military commission, and havenot shown cause for being discharged by writ of habeas corpus.

It seems clear that the President has applied the concept of Quirin in issuing theExecutive Order regarding detention, treatment, and trial of certain non-citizens in thewar against terrorism. Significant changes in military law and procedure have takenplace since the Quirin decision, the most important of which was the adoption of theUCMJ.[29] It seems probable that the Secretary of Defense will rely on provisions of theUCMJ in promulgating orders and regulations governing trial by military commissions.

Nor is the concept of special tribunals to try certain offenses unique. The InternationalCriminal Tribunal for the former Yugoslavia (“ICTY”) was established by UnitedNations Security Council resolution 827 on 25 May 1993. ICTY was given the power toprosecute persons “responsible for serious violations of international humanitarian lawcommitted in the territory of the former Yugoslavia since 1991 . . .” ITCY wasauthorized to prosecute persons for four categories of offenses: (1) grave breaches of theGeneva Conventions of 1949,[30] (2) violations of the laws or customs of war,[31] (3)genocide,[32] and (4) crimes against humanity.[33]

Much like the description of those subject to the President’s Executive Order, ICTY maytry any person who planned, instigated, ordered, or committed a crime in one of the fourcategories, as well as anyone who aided or abetted in the planning, preparation orexecution of one or more of the specified crimes. “The official position of any accusedperson, whether as Head of State or Government or as a responsible Government official,shall not relieve such person of criminal responsibility nor mitigate punishment.”[34] Therules governing ICTY also provide that if a subordinate commits any of the specifiedcrimes, it will not relieve his superior of criminal responsibility if the superior knew orhad reason to know that the subordinate was about to commit such acts or had done so,and the superior failed to take the necessary and reasonable measures to prevent such actsor to punish the perpetrators.[35] In addition, the fact that an accused person acted pursuantto an order of a government or of a superior does not relieve him of criminalresponsibility.[36]

ICTY was not a new concept. Following World War II, the governments of the UnitedStates, the French Republic, the United Kingdom and the Union of Soviet SocialistRepublics established an International Military Tribunal (“IMT”) for the trial andpunishment of war criminals of the European Axis. IMT was governed by a Constitutionwhich was signed on August 8, 1945. IMT consisted of four members, each with analternate, appointed by each of the four governments. Neither IMT, its members nor theiralternates could be challenged by the prosecution, or by the defendants or by theircounsel. Before any trial could commence, the members of IMT were required to agreeamong themselves upon the selection from their number of a President. The IMTPresidency rotated based upon the votes of its members. Decisions were made bymajority vote, except that convictions and sentences required a 75% affirmative vote.Trials in absentia were authorized. Procedural rules were drafted by the prosecutors. Inaddition, the Constitution of IMT expressly provided that:

The Tribunal shall not be bound by technical rules of evidence. It shalladopt and apply to the greatest possible extent expeditious andnontechnical procedures, and shall admit any evidence which it deems tobe of probative value.[37]

The judgment of IMT as to the guilt or the innocence of any defendant was final and notsubject to review.[38]


Terrorists who become subject to the President’s Executive Order will be far morefortunate than their counterparts in earlier times. They are guaranteed “a full and fairtrial.”[39] They are guaranteed the right to counsel.[40] The final decision will rest with thePresident. No sentence can be carried out without the authority of the Presidentfollowing his review of the record of trial.[41] If the President so chooses, he can transferjurisdiction over any individual subject to the Executive Order to another branch ofgovernment, presumably the Department of Justice, for prosecution in civilian courts.[42]

1/ Mr. Lathrop is a retired Captain in the Judge Advocate General Corps of the U.S. Naval Reserve.He received his B.S. degree from the United States Naval Academy and his J.D. degree from theUniversity of Southern California. In addition to California and New York, Mr Lathrop is alsolicensed in the District of Columbia and is admitted to practice before the U.S. Supreme Court.He is a certified trial and defense counsel before U.S. courts-martial. He is also a member of theAmerican Board of Trial Advocates and is Board Certified as a Civil Trial Specialist by theNational Board of Trial Advocacy. Mr. Lathrop may be reached by e-mail at<mlathrop@luce.com>.

2/ The joint resolution authorized the President to use all necessary and appropriate force againstthose nations, organizations, or persons he determines planned, authorized, committed, or aidedthe terrorist attacks that occurred on September 11, 2001, or harbored such organizations orpersons. The joint resolution was “intended to constitute specific statutory authorization withinthe meaning of section 5(b) of the War Powers Resolution.” (107th Congress, 1st Session, S.J.Res. 23, September 14, 2001.)

3/ Among other provisions, the far-reaching USA Patriot Act created a counterterrorism fund;increased funding for the technical support center at the Federal Bureau of Investigation; expandedPresidential authority under the International Emergency Powers Act (50 U.S.C. § 1702);authorized enhanced surveillance procedures and the interception of wire, oral, and electroniccommunications relating to terrorism; expanded surveillance authority under the ForeignIntelligence Surveillance Act of 1978 (50 U.S.C. § 1805); authorized nationwide service of searchwarrants for electronic evidence; created special measures for jurisdictions, financial institutions,and international transactions of primary money laundering concern; included foreign corruptionoffenses as money laundering crimes; authorized the exercise of “long-arm” jurisdiction overforeign money launderers; increased civil and criminal penalties for money laundering; authorizedthe Attorney General and the Secretary of State to pay rewards to combat terrorism; authorizedDNA identification of terrorists and other violent offenders; and strengthened criminal lawsagainst terrorism.

4/ “[W]hen the United States is engaged in armed hostilities or has been attacked by a foreigncountry or foreign nationals, [the President may] confiscate any property, subject to thejurisdiction of the United States, of any foreign person, foreign organization, or foreign countrythat he determines has planned, authorized, aided, or engaged in such hostilities or attacks againstthe United States; and all right, title, and interest in any property so confiscated shall vest, when,as, and upon the terms directed by the President, in such agency or person as the President maydesignate from time to time, and upon such terms and conditions as the President may prescribe,such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt within the interest of and for the benefit of the United States, and such designated agency or personmay perform any and all acts incident to the accomplishment or furtherance of these purposes.”USA Patriot Act, § 106.

5/ U.S. Constitution, Article I, section 8.

6/ U.S. Constitution, Article II, sections 1 and 2.

7/ Title 50 U.S.C. chapter 33.

8/ 50 U.S.C. § 1541(a).

9/ 50 U.S.C. § 1541(c).

10/ See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-586, 72 S. Ct. 863, 866, 96L. Ed. 1153, 1166 (1952) (“President’s power . . . must stem either from an act of Congress orfrom the Constitution itself.” Where the Government failed to follow statutory authority becauseit was “much too cumbersome, involved, and time-consuming for the crisis which was at hand,”the Supreme Court affirmed an injunction against the governmental action.).

11/ 50 U.S.C. § 1621 authorizes the President to declare a national emergency. Congress must beinformed and the declaration published in the Federal Register. The special powers andauthorities conferred on the President during a national emergency are effective only during theperiod of declared national emergency.

12/ 50 U.S.C. § 1544(a).

13/ 50 U.S.C. § 1544(b).

14/ 50 U.S.C. § 1544(c).

15/ U.S. Constitution, Amendments 5, 6 and 14, § 1.

16/ For an interesting, if highly subjective, narrative, see Dunne, Dominic, Justice (Simon & Schuster,New York, 2001).

17/ Applying the laws of other nations could easily result in similar delays. The terrorist bombing ofPan Am flight 103 over Lockerbie, Scotland, occurred on December 21, 1988. Two accusedLibyan terrorists were eventually brought to trial under Scottish law in the Netherlands. ThreeScottish judges sitting without a jury presided over the case. On January 31, 2001, over 12 yearsafter the crime was committed, the verdict was announced. One terrorist was found guilty, whilethe other defendant was acquitted. The case is now on appeal.

18/ The term “U.S. Uniformed Services” is considerably broader than “U.S. Armed Forces.” See thediscussion, infra.

19/ UCMJ, Article 5, 10 U.S.C. § 805.

20/ Executive Order, Section 4(c)(1).

21/ 10 U.S.C. § 800, et seq. See also UCMJ, Art. 26, 10 U.S.C. § 826.

22/ Members of the miliary commission could overrule the presiding officer upon the request of acommission member and a majority vote of the military commission.

23/ Pub. L. 93-595, 88 Stat. 1926.

24/ These provisions are similar to their counterparts in the UCMJ, which requires that death penaltiesbe imposed by unanimous vote of all the members of the court-martial present at the time the voteis taken; life imprisonment or confinement for more than ten years requires a three-fourths vote ofthe members at the time the vote is taken; and all other sentences shall be determined by theconcurrence of two-thirds of the members at the time the vote is taken. UCMJ, article 52, 50U.S.C. § 852.

25/ The Brig Amy Warwick, et al., 67 U.S. 635, 17 L. Ed. 459 (1862).

26/ The U.S. District Courts for the Districts of Florida, Massachusetts, Virginia and New York.

27/ Id., 67 U.S. at 668, 17 L. Ed. at 477.

28/ 317 U.S. 1, 87 L.Ed. 7 (1942).

29/ 10 U.S.C. § 800, et seq.

30/ I.e., (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c)wilfully causing great suffering or serious injury to body or health; (d) extensive destruction andappropriation of property, not justified by military necessity and carried out unlawfully andwantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g)unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians ashostages.

31/ I.e., (a) employment of poisonous weapons or other weapons calculated to cause unnecessarysuffering; (b) wanton destruction of cities, towns or villages, or devastation not justified bymilitary necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages,dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicatedto religion, charity and education, the arts and sciences, historic monuments and works of art andscience; (e) plunder of public or private property.

32/ I.e., acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religiousgroup, such as (a) killing members of the group; (b) causing serious bodily or mental harm tomembers of the group; (c) deliberately inflicting on the group conditions of life calculated to bringabout its physical destruction in whole or in part; (d) imposing measures intended to prevent birthswithin the group; (e) forcibly transferring children of the group to another group.

33/ I.e., crimes committed in armed conflict, whether international or internal in character, anddirected against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d)deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial andreligious grounds; (i) other inhumane acts.

34/ Statute of the International Tribunal, adopted 25 May 1993 by U.N. Resolution 827, as amended13 May 1998 by U.N. Resolution 1166, as amended 30 November 2000 by U.N. Resolution 1329,Article 7, Section 2 (hereinafter “ICTY Statute”).

35/ ICTY Statute, Article 7, Section 3.

36/ ICTY Statute, Article 7, Section 4.

37/ IMT Constitution, Article 19.

38/ IMT Constitution, Article 26.

39/ Executive Order, Section 4(c)(2).

40/ Executive Order, Section 4(c)(5).

41/ Executive Order, Section 4(c)(8).

42/ Executive Order, Section 7(e).