Crimes of War

December 21, 2001

Jeffrey K. Walker,
Judge Advocate, Lieutenant Colonel, USAF; Chief, Aircraft Investigations, HQ, Air Combat Command
Interviews and Introduction by Marguerite Feitlowitz

Mr. Walker’s comments are his personal opinions, and are not intended to represent positions or policies of the U.S. Air Force.

Military tribunals are established under Article I of the Constitution, which provides for the discipline of the armed forces. The best way to look at military commissions is as a sub-category under the general rubric of "military tribunals," comprising not only military commissions, but also courts-martial and provost courts. The court-martial is the most routine form of prosecution, whose elaborate rules of evidence and procedure are at least as extensive as the due process guarantees of a civil criminal prosecution. The defendant can request that a particular attorney in the force be detailed to represent him: if that lawyer is reasonably available, he or she will be assigned to the case. Defendants are guaranteed free military counsel through every level of appeal. They also have the option of retaining civilian counsel at their own expense. In the civilian criminal system, the Miranda protections (the right to remain silent, to have a lawyer present, to not say anything that could be used against one in court) are only triggered during a custodial interrogation. Article 31—the military equivalent to the Miranda warnings—applies also to non-custodial interrogations. Whenever and wherever there is suspicion that someone has committed a crime, law enforcement officers must read the person his Article 31 rights before any questioning or conversation can begin. While I am not an expert on provost courts, which are used only in the army, I can say they are a magistrate’s court set up by a provost marshal, the army’s head military police officer who is traditionally responsible for law enforcement matters on a base or installation.

What sets military tribunals apart from all other kinds of trials is that they are commander-driven. They are ad hoc courts, established by a commanding officer in response to a particular crime or set of circumstances (war, occupation, martial law). The commander convenes the tribunal, refers charges to that tribunal for trial, details personnel to that tribunal, and receives the findings and sentence from the tribunal. In a court-martial, the convening commander has plenary authority: he can even ignore the findings and sentence. The rule in this regard is that the commander may be more lenient, but not more stern: he can lessen a sentence, even overturn a conviction.

The military tribunal is a peculiarly useful tool for ensuring the discipline of a force in the field, for making certain that the commander’s orders are obeyed by his subordinates. There is no point in giving the right to issue orders, if you cannot also enforce them. It is a very traditional system; every military in recorded history has had some form of internal penal discipline. From an international law perspective, this is how you ensure compliance by your force with the laws of war. Don’t forget: Under the Geneva Conventions, the definition of "combatant" stipulates not only that the person belong to a regular armed force, wear a uniform or distinctive sign or symbol, and openly bear arms; it also says that "combatants" serve under the command of someone who is responsible for the actions of their subordinates, and who operates in compliance with the laws of war. Commanders need control over their subordinates. Legal commentaries agree that an internal system of penal discipline is a pre-requisite for ensuring compliance with the laws of war within a military force.

Now having said all that, there are some obvious downsides. The European Court of Human Rights has begun systematically dismantling a British system of courts-martial very much like ours, on the basis that the commander-driven structure is no longer tenable. In Britain, commanders no longer have the right to convene courts-martial; they must ask another officer to create the tribunal. In fact, British lawyers and judge advocates have told me they expect that the European Court will soon require some civilian control element in all courts-martial proceedings.

To contextualize the November 13 Military Order, let me say that military commissions have a long history in the United States. They were employed by President Washington, and used extensively in the Civil War and during Reconstruction; the Lincoln assassination conspirators were tried by military commission. There were military commissions during both world wars: perhaps the most famous is the Ex parte Quirin case of 1942 against eight German saboteurs who landed on our shores. A particularly interesting case from WWII is Duncan v. Kahanamoko, in which Mr. Duncan (a citizen of Hawaii, at that time a U.S. territory under martial law) was tried for a civilian offense by a military commission. The Supreme Court ruled that as long as regularly constituted civilian courts were functioning (which they were), military commissions were not an option, at least on U.S. territory. This may have an impact on review of the "exclusive jurisdiction" provision of President Bush’s Order (Section 7 (b)(1). Another case that has bearing on the present situation is the military commission convened by General MacArthur to try General Yamashita, the very abusive military governor of the Philippines during the Japanese occupation. In its review of the case, the Supreme Court ruled that military commissions could be used after the cessation of hostilities, and that they could be used to try prisoners of war. Now the issue about trying POWS in military commissions is highly controversial today, and it will be interesting to see how this plays out if we take many prisoners in Afghanistan.

The Order issued by President Bush in his capacity as commander-in-chief is in some ways extremely inconclusive and in other ways over-determinative. The document was clearly written by someone who knows the Uniform Code of Military Justice. If you look at Section 1(f), it says that "it is not practicable to apply…the principles of law and the rules of evidence generally recognized in the trial of criminal cases…" Now the UCMJ states explicitly that any tribunal should use standing rules which "if at all practicable apply the rules of court-martial and the rules of evidence." They’ve used the language of the UCMJ to fashion an exception, a loophole, if you will.

This elasticity has alarmed a great many people. I guess I am not as concerned, since, no matter what the rules ultimately are, they must comport with the international obligations of the United States, that is to say, with the basic provisions of the Universal Declaration of Human Rights, the basic trial and due process rights covered in the International Covenant on Civil and Political Rights, to which the U.S. is a state party, and with other generally accepted principles of international law. When the Department of Defense releases its proposed rules and procedures—which I’m told will be in about two weeks--the first yardstick will be whether they comport with our existing legal obligations. I don’t know who exactly will be writing the final document, but Judge Advocates General are experts in these international treaties and instruments. The Congress—particularly the Senate Judiciary Committee—is intensely, and appropriately, concerned.

There are other provisions in this Order which, as I said earlier, are "over-determinative." A prime example is Section 7 (2), which deprives the defendant of "any remedy…in any court of the United States, or any State thereof, any court of any foreign nation, or any international tribunal." The right to appeal is basic. What if someone sought the protection of the European Court of Human Rights, which has already ruled that commander-driven courts do not comport with the European Covenant on Human Rights? In addition, the ECHR has also prohibited any support for the death penalty--including any member state extraditing persons to other countries for crimes that might result in the death penalty. The proposed commissions are specifically chartered to deliver the death penalty which, combined with the deprivation of appeal, would seem extremely problematic for our European allies.

I understand that for some the broadness of this Order leads in an unbroken chain of logic to a nightmare scenario in which defendants are rounded up out of caves, herded onto aircraft carriers, tried quickly, convicted, and almost immediately executed. From a purely practical viewpoint and from my own experience, I just cannot imagine our commanders being at all comfortable with executing capital punishment in the field without a lot of very high level guidance and direction. To be perfectly honest with you, I get a little queasy talking about this because I have a personal distaste for capital punishment, which I know puts me in the minority in this country. Personal viewpoints aside, I simply cannot see our commanders enforcing mass executions.

I imagine these commissions as functioning in the theatre of war—in Afghanistan, or possibly Uzbekistan or Tajikistan, if we end up putting troops there. The military commission is a very efficient way to adjudicate large numbers of cases, not that that is an excuse for denying fundamental or international standards of due process. I tend to think that the commissions will ultimately resemble courts-martial. We might also consider the inquisitorial model used by France and Spain, where you have an investigating magistrate—un juge d’instruction or un juez de instrucción—assigned to each case to collect evidence and present it to the court. That too comports well with international standards. The military commission is designed to be flexible, and so we have the option of incorporating rules and procedures from other systems--including from Afghan or even Islamic criminal law. This is particularly valuable in situations of occupation, where you want to get the regular civilian courts up and running as soon as possible. You want to revert to normalcy, and a good way to do this is to incorporate familiar legal practices. I think elements of the French or Spanish system would be apt in this regard.

Let me point to a couple of problems that could arise in the field. Mere membership in Al Qaeda –and it would have to proved, of course--may not be sufficient cause for prosecution. At the Nuremberg tribunals, the SS was defined as a criminal organization, but mere status as an SS member did not make you a criminal. The U.S. and the allies all agreed on that precedent. So the question is, What are the charges?

From what I have read, Al Qaeda seems to have a three-part structure: the so-called crème de la crème, the top ten per cent of the recruits in the various training camps: the educated, skilled, worldly individuals who can be used for deep cover commando operations like the attacks of September 11. If you could apprehend any of them, or their cohorts, they could well be tried by a federal district court. The 1993 bombing of the World Trade Center was ably prosecuted in this way. The men of September 11 were not in uniform, they were in deep cover, they were spies, saboteurs, hijackers, and murderers. Quite simply, criminals. Now the second level of Al Qaeda-- and this is the majority, apparently—are regular, run-of-the-mill recruits trained in Afghanistan and used to form volunteer corps to augment the Taliban. These are the troops fighting from the caves. Now whether we recognize the Taliban as the legitimate government, as of September 11 they certainly controlled most of the country. These Al Qaeda recruits would be considered members of "volunteer corps" under Geneva 3, which means that if they are captured, they get prisoner of war status. Unless these troops commit war crimes—attack civilians, commit rape, burn a village—it is not intuitively obvious to me what you should try them for. You can’t try them for shooting at you—in warfare, that’s legal. The third level of Al Qaeda, also quite elite, is believed to be responsible for the recent mayhem in Kashmir.

The Order has some extremely broad language in Section 1(c), which allows for the prosecution in military commissions of "individuals… involved in… [and possessing] both the ability and the intention to undertake further terrorist attacks against the United States." I understand that the sweep of this passage makes many people nervous. For me, the problem is the word terrorism, which has yet to be defined in international law. Certain acts have of course been codified, but terrorism as such provokes more disagreement than agreement. It goes back to the old saying, "One person’s terrorist is another’s freedom fighter." I believe that certain specific acts—no matter by whom they are committed and no matter toward what ends—should simply be declared by the international community as beyond the pale. That was done with piracy and slave-trading. "Terrorism" is simply too broad and subject to political considerations. Anne-Marie Slaughter has actually proposed doing away with efforts to define "terrorism" altogether, and to declare any deliberate attack against civilians as a crime against humanity. It’s a very provocative approach, and one which may have great potential as long as we don't end up with a regime that is more restrictive for military forces than that which already exists under the laws of war.

I am anxious to see the final documents with the proposed rules and procedures for these military commissions, and would expect re-invigorated debate at that time. There is general agreement that this initial draft was handled badly: there was too much secrecy; it was dropped on the world like a fait accompli. Congress is understandably upset, which is why they are holding hearings. I hope and expect the final documents to explicitly reflect our international legal obligations.