Justice & Al Qaeda

Is the National Defense Authorization Act of 2012 constitutional?

The generation of the Founding Fathers was much attached to religion. They doubtless knew the biblical commandment, “Justice, Justice, shall you pursue” (Deuteronomy 16:20). The Preamble to the new Constitution consequently expressed a purpose to “establish justice,” which, Alexander Hamilton explained in The Federalist No. 17, would serve as the “great cement of society.” Indeed, justice would be set in concrete by express provision for due process of law, speedy public trial, impartial juries, witnesses (pro and con), counsel, habeas corpus, and other protections.  

Military justice was another matter. The purpose of the Articles of War, which predate the Constitution, was disciplinary—part of the equipment of the Commander in Chief, with only a minor interest in just results. Until the overhaul of the system after World War II, military justice remained a pale copy of a judicial system—one that, as Clemenceau put it, was to justice as military music was to music.A particularly anomalous feature was the military commission, an apparatus used for pseudo-trials of violations of so-called laws of war. The commissions were staffed by officers who, in the words of one observer, “could not distinguish a law book from a bale of hay.” Yet, in the 1942 Quirin case, when German would-be saboteurs were captured on the beach at Amagansett, the President appointed such a commission to conduct their trial, denying them access to the courts. The Supreme Court approved.

The Uniform Code of Military Justice of 1950 transformed the general position.  Courts-martial for serious offenses were conducted by lawyer-officers and came to resemble ordinary criminal trials with the possibility of appeal. Lesser offenses were tried less formally, under better procedures. The old military commissions were improved later. Justice was on the march.

On September 11, 2001, the entire judicial system was profoundly challenged by the murder of three thousand innocent people by Al Qaeda terrorists. How could the American commitment to justice be honored in cases of fanatical, quasi-military killers?

The immediate response of Congress was not a concern with justice but a reaffirmation of the powers of the president: a joint resolution of 2001 authorized the president to use military force against those who aided the terrorist attack and to prevent repetition of the calamity. But a remarkable miscalculation was made by the president’s men; it was thought that if captured suspects were jailed off shore they would be beyond the reach of the Constitution. An old U.S. naval base on the island of Cuba, Guantánamo Bay, seemed to fit the bill. Except for theoretical sovereignty retained by Cuba, the United States was absolute monarch over the base. Suspected Al Qaeda members could be locked up there, and our intelligence services would be free to treat them in any manner useful for the defense of the nation. But in a series of Supreme Court cases culminating in Boumediene v. Bush (2008), the Court held that “in every practical sense Guantánamo is not abroad.” In the pursuit of justice, the federal courts possessed the constitutional authority under the habeas-corpus clause to review the legality of detentions on the island, notwithstanding congressional action to the contrary.

The legislative response was to include in the massive National Defense Authorization Act of 2012 (which runs to 565 pages) about ten pages’ worth of new provisions related to counterterrorism. Passage of these provisions was fraught with controversy, and it was only after considerable to and fro that the president, on December 31, 2011, approved the bill. 

The new law applies to those who aided the 9/11 attacks and to substantial supporters of Al Qaeda, Taliban, and “associated forces” engaged in hostilities against the United States. Our armed forces are authorized to detain such offenders until disposition “under the law of war.” The statute states that such offenders may be held without trial until the end of hostilities or trial by military commission (or another competent court) or transferred to foreign control. To reassure Americans, laws applicable to the detention of U.S. citizens, lawful resident aliens, and others arrested in the United States are left unchanged. 

The armed forces are given the job of holding in custody members of Al Qaeda who plan or carry out attacks; again, U.S. citizens and lawful resident aliens acting in the United States are excluded. The statute also requires periodic review of detainees at Guantánamo, which is to focus on the risk of recidivism. Funds appropriated for 2012 may not be used to house Guantánamo detainees in—or transfer them to—prisons in the United States. 

In approving the act, the president issued a “signing statement,” a recent innovation in the legislative process by which the chief executive does not veto a bill (as Obama had threatened to do) but expresses his displeasure with specific provisions that, he says, he will not enforce. Such a statement is not binding on his successors but may be instructive in interpreting the law. During the legislative process, the president expressed doubts about language in the bill that seemed to subject American citizens to “detention under the law of war without trial until the end of hostilities.” The president made it plain that he would not “authorize the indefinite military detention without trial of American citizens [which] would break with our most important traditions and values as a nation.” 

The president also objected to the provision barring the transfer of Guantánamo detainees to the mainland for trial or other purposes. As the government had “successfully prosecuted hundreds of terrorists in federal court,” the removal of that tool, he said, was not in the national interest and, moreover, intruded unconstitutionally on executive powers. 

Reasonable people may differ about the dimensions of the threat posed by Al Qaeda, but there is a touch of paranoia in the insistence that Guantánamo detainees not be moved to the mainland. As President Obama noted, hundreds of terrorists have been tried in federal courts with satisfactory results. That is to our credit. Of the prisoners confined to the island, however, only a handful have been tried at all—by military commission. Pursuit of justice on the island has not been energetic. Were the Guantánamo inmates, now reduced to 171, carriers of leprosy or smallpox, a rational case for their exclusion from the mainland could be made. But the irrational fear that they would wreck the federal prison system or break out to carry on with their terrorism here is a discredit to the nation. The many successful prosecutions of detainees in domestic courts are proof to the contrary, if proof were needed. 

The “law of war,” to which repeated reference is made, includes not only the classic Geneva and Hague conventions but more recent UN declarations against terrorism. The conventions pursue modest forms of justice. Adopted by “High Contracting Parties” (hardly Al Qaeda), the conventions apply awkwardly to terrorists; they were designed to protect uniformed troops engaged in historic forms of warfare, not suicide bombers. Further, the Third Geneva Convention of 1949 is a code demanding humane treatment of all prisoners: “no physical or mental torture, nor any other form of coercion, may be inflicted” upon them. Our compliance with that norm is now in question. 

Above the new statute stands the Constitution, which, the Supreme Court reminds us, demands that we pursue the justice of Deuteronomy in the form of the habeas and due-process clauses. In the teeth of the enormities perpetrated by Al Qaeda, that pursuit serves to distinguish America from its enemies.

Related: Regret Is Not Enough, by Cathleen Kaveny

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).

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