HIGHLANDS, N.C., Jan. 28 (UPI) -- A major international debate now concerns the prisoners being held at Guantanamo Bay, Cuba. What is their status? What will be their legal fate?
Well, some of these prisoners will be put on trial before military tribunals. Some may face the death penalty. Their lawyers will challenge the legality of these trials. They will lose, unless the current Supreme Court decides to reverse a long-standing, well-grounded, unanimous Supreme Court decision, Ex Parte Quirin (1942). The odds of that happening are nearly zero.
The key to understanding the prisoners' status is the phrase the administration is now applying to them, "illegal combatants." That is borrowed from Quirin, which is short, unanimous and written in plain English, virtues lacking in most modern Supreme Court decisions. Laymen and lawyers can understand this decision, which applies to the Guantanamo prisoners. (To read the decision, go to supct.law.cornell.edu/supct and search under "historic decisions" for "Quirin").
That case concerned eight German saboteurs who entered the United States from submarines off Florida and New York. One of the Germans turned states' evidence, so they were captured before they could blow up various facilities -- for which they had been trained and funded in Germany.
Because they were illegal combatants, the Supreme Court upheld the trial of the saboteurs before a military tribunal, created by executive order of President Roosevelt. All were convicted; six were executed. Roosevelt's order was similar to the one just issued by President Bush, except the current order does not permit such trials of American citizens.
During their trial in July 1942, the defendants filed petitions for habeas corpus in the U.S. District Court for the District of Columbia. They claimed the trial was illegal and unconstitutional. That court denied relief. The defendants immediately made the same challenge in the Supreme Court. The court took the case in emergency session. In three days it accepted briefs, heard argument, and decided the case in a one-page per curiam order on July 31.
In October, the court issued its formal opinion stating detailed reasons for its emergency order. Contrary to what some commentators have said, it is not unusual for the court to issue a brief emergency order, followed months later with an opinion stating the reasons. This is common in cases with inexorable deadlines, such as pregnancy, death penalties or pending elections.
The opinion in Quirin was unanimous, 8-0. Justice Murphy disqualified himself; Chief Justice Stone wrote the opinion.
All the defendants had been born in Germany and had lived in the United States. One claimed U.S. citizenship, but the court found that even if he was a citizen, his trial was legal and constitutional because the acts he was charged with "renounced his citizenship" under U.S. law. The Bush administration could have taken the same position concerning John Walker Lindh, the "American Taliban," but did not do that. Therefore, his trial will be held in an ordinary federal criminal court.
President Roosevelt's executive order creating a military tribunal was issued July 2, 1942. The court concluded this was legal, under both the U.S. Constitution and international law, for four basic reasons.
First, Congress explicitly had provided for such tribunals in Title 10 of the U.S. Code, in the "Articles of War." The tribunal provision was passed in 1806 to give President Jefferson additional authority to deal with the Barbary pirates. Contrary to the complaints of some members of Congress that it "should" act on this subject, the truth is Congress already has acted on this. (The Barbary pirates represented the only other instance when the United States went to war not against nations, but against a group of international war criminals operating in the territory of various nations).
Second, the court recognized the "law of war," international standards which pre-existed the creation of the United States. General George Washington used this authority to try, convict and hang British Major John Andre in 1780.
Third, the court decided that trials under the law of war, whether standard courts martial or special military tribunals, are outside the Article III definitions of the judicial power of the United States. Therefore, they are not subject to the Bill of Rights. The court held that the fact defendants were not provided with the broadest possible guarantees available to defendants in ordinary criminal cases under the Bill of Rights and the Constitution, did not bar special military tribunals.
Fourth, the court decided that even though Congress provided certain guarantees to American military personnel in courts martial, those did not apply to the German defendants. Under the law of war and under the powers of the president as commander-in-chief, Roosevelt could provide different procedures for a military tribunal.
The court did not refer to the Geneva Convention; however, it did cite its predecessor, the fourth Hague Convention of 1907. Both conventions refer to "illegal combatants." To receive the protection of the Geneva Convention, a captured enemy must meet four conditions: represent a nation, be part of an organized army, wear a uniform (to distinguish him from civilians), and represent a nation that itself applies the convention to its captives. Perhaps the Guantanamo prisoners meet one condition -- being organized. But they fail the other three requirements, making them "illegal combatants."
In footnotes to Quirin, the court describes all U.S. instances of using military tribunals for violations of the "law of war." They occurred in these wars: the Revolution, Civil, 1812, and Mexican-American. Plus, of course, World War II.
The final important aspect of Quirin is its discussion of the only other U.S. case dealing with military tribunals. Ex Parte Milligan was decided in 1866. The defendant was a Confederate sympathizer in Indiana. The Court overturned his conviction by a military tribunal. Milligan is the source of the quote from Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, among other critics, that military tribunals "should not be used while the civil courts are open and able to function." The court in Quirin restricted that Civil War case to "the facts before it," and stated that Milligan was "inapplicable to the case presented by the present record." In plain English, the Civil War case is a dead letter; the World War II case is the governing law.
In a recent news conference, Secretary of Defense Donald Rumsfeld faced numerous questions about the status and possible trials of the prisoners at Camp X-ray. Repeatedly he said, "final decisions have not been made." What the Quirin case makes absolutely clear is that these are not "prisoners of war" and their trial by military tribunals would be consistent with U.S. law, the Constitution, and international law.
Some of the prisoners may be released. Some may be held for the duration of the war and then released. Some may be tried in ordinary criminal trials. But under the Quirin case, the United States has the authority to try any of them, probably those accused of the most serious war crimes, before military tribunals.
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(John Armor practices law in the U.S. Supreme Court, having briefed 16 cases there. His eighth book, "These are the times..." on Thomas Paine, will be published this year. Armor is a graduate of Yale University and Maryland Law School, and is a former professor of political science at the University of Baltimore. He resides in Highlands, N.C.)
