by Mary W Maxwell, LLB
A hot subject today is whether the president of the US can legally instruct the military to US grab citizens, render them overseas to “black sites” and interrogate them as enemy combatants. A separate question concerns the legal power to try a civilian by “military tribunal” and if they are convicted, to execute them, without benefit of judiciary.
There are different legal principles and laws involved. This article searches for the legality of the aforementioned renditions and military tribunals. Four laws and four court cases will come into the discussion. The laws are: the AUMF of 2001, the Military Commissions Act of 2009, the NDAA of 2012, and the criminal law of treason. The court cases are Hamdi of 2004, Hamdan of 2006, Hedges of 2013, and Ex parte Quirin of 1942.
Hovering over this article is the current rumor that some part of the DoD (Department of Defense) is at this moment hauling some US citizens, believed to be traitors, to offshore locations. They may be “rendered” to CIA black sites in Europe, or Guantanamo Bay in Cuba (aka Camp X-ray, nickname “Gitmo.)”
Basically, this article analyzes jurisdiction: Who has the authority to “bring to justice” persons who can be shown to have betrayed the nation?
Knowing, however, that the subject of jurisdiction is boring, let’s spice it up with the following question: Who has jurisdiction right now, today, to arrest any American who played a part on September 11, 2001 in attacking the New York WTC or the Pentagon?
Punishing the 9-11 Miscreants
On September 14, 2001, a mere three days after Americans were stunned by the destruction of the World Trade Center, President Bush asked for, and got, a joint resolution from Congress, enacted on September 18, as follows:
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
That is known as the “AUMF” – the Authorization for the Use of Military Force. It has a sunset clause but every year – 19 times so far — Congress has renewed it. Congress is notably lax in enforcing Article, sec 8 of the United States Constitution that gives the legislature exclusive authority to declare war. (See my lawsuit, Maxwell v Trump).
In plain English, the AUMF authorizes a presidential move against any person “he determines” to be a Nine-Elevener, including a US citizen, with no further due process needed. He can “use force.”
(In actuality, though, the DoJ, Department of Justice, is more likely to employ the normal judicial system to try such persons if they are Americans.)
Normally you would think that a US citizen cannot be removed from the country to be interrogated (or tortured) at a black site. But a civilian can be dealt with as an “enemy combatant” if he is fighting against the US (per Hamdi; see below).
Note: we are not talking about court-martialing under the UCMJ – the United Code of Military Justice. That is a domestic law in the US that applies only to members of the US military, not civilians.
The UCMJ came about via Congress’ power in Article I, section 8, clause 14 “To make rules for the Government and Regulation of the land and naval Forces.”
Hamdi v Rumsfeld, 2004
Hamdi was a US citizen captured in Afghanistan and accused of aiding the enemy. The important point today from this 2004 SCOTUS ruling, is that a US citizen can be designated an enemy combatant. Under the Detainee Treatment Act of 2005, the decision as to whether he is a combatant can be made by an executive branch’s Combat Status Review Tribunal – CSRT’s.
Hamdi agreed to be freed at the expense of forfeiting his US citizenship. Another citizen, Jose Padilla, was included in the Hamdi case and was removed to the brig in South Carolina.
Hamdan v Rumsfeld, 2006
A man with a similar name, Hamdan, was not a US citizen. Nevertheless, he sought access to American courts from his location at Gitmo. This resulted, at US Supreme Court level, in such detainees being given at least some rights.
One of the court’s decisions was that a president cannot set up military commissions without legislation for it. Thus, Congress enacted the Military Commissions Act, the MCA in 2006.
MCA — Military Commissions Act of 2009
Following another SCOTUS ruling, in Boumediene, a new MCA was passed in 2009. It extended further rights to NON-citizen detainees, such as making information acquired by torture inadmissible.
The Military Commissions Act of 2009 is “to authorize trial by military commission for violations of the law of war, and for other purposes”. The phrase “and for other purposes” is very open-ended! (Note: The term “Military Tribunal” is not the same as Military Commission. A tribunal is part of the UCMJ for soldiers.)
The NDAA – National Defense Authorization Acts
Now let’s turn to, the NDAA of 2012. According to the US Constitution, Congress cannot fund an army for more than two years at a time. Hence every two years it passes a new National Defense Authorization Act. The 2012 Act was signed by President Obama on December 31, 2011. It provides for indefinite detention of enemy combatants, whether or not they were caught on the battlefield.
In a memo, President Obama stated that AUMF apples to a person who “was part of the Taliban, or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces…” [Emphasis added]
As the memo was dated March 13 those criteria are known as “the March 13 standard.” Obama’s Attorney General Eric Holder had said, in a speech at Northwestern University School of Law, on March 5, 2012:
“… there may be members of certain terrorist groups who fall outside the jurisdiction of military commissions because, for example, they lack ties to al Qaeda and their conduct does not otherwise make them subject to prosecution in this forum. Additionally, by statute, military commissions cannot be used to try U.S. citizens….
“[In 2011], all three branches of the government weighed in to affirm the ongoing relevance of the 2001 AUMF and its application not only to those groups that perpetrated the 9/11 attacks or provided them safe haven, but also to certain others who were associated with them.”
Hedges v Obama (2nd Circuit, 2013)
The NDAA 2012’s section on “associated” persons was challenged by Chris Hedges, a former New York Times writer, on the grounds of its ambiguity. He argued that journalists would have to cut back on their field work, lest they be “associated” with, say, a Taliban member.
A district court agreed but the Second Circuit overruled, and SCOTUS declined to hear the case.
This article’s ransacking of legislation and court cases is prompted by a rumor that President Trump is attempting, secretly, to “bring to book” some American traitors. The issue to be determined is one of jurisdiction: Is dealing with treason, by use of rendition and interrogation, legal?
So far, we looked at the AUMF of 2001, the MCA of 2009, and the NDAA of 2012. It is clear that there are military commissions for enemy combatants, per the MCA, and that per Hamdi, a US citizen can be an enemy combatant. However, it appears that only aliens can be tried by military commission:
The AUMF’s wording gives enormous discretion to the Executive branch: “… the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned or aided…[etc].”
The NDAA of 2012 also has loose wording:
“or associated forces that are engaged in hostilities against the United States… , including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
Next we ask: Does a 1942 precedent still hold?
Ex Parte Quirin, 1942
In 1942, the US president, FDR, used a military tribunal to convict six German saboteurs. That is to say, the decision of a justice matter, normally held in a court, was taken by the executive branch. The saboteurs were enemies of the US, as Germany and the US were at war. On the battlefield, the president could order them killed. But did he have the right to “tribunalize” the captives in the US?
FDR issued a Proclamation: “all persons who are subjects, citizens or residents of any nation at war with the United States… [and who enter the US] through coastal or boundary defenses, and are charged with committing or … sabotage, espionage[etc] shall be subject to the law of war and to the jurisdiction of military tribunals”.
The US Supreme Court in Ex Parte Quirin, 1942, held:
“there is a class of unlawful belligerents not entitled to [POW] privilege… And by Article 15 of the Articles of War Congress has made provision for their trial and punishment by military commission, according to ‘the law of war’.”
Quirin has never been specifically overruled. FDR on his own initiative ran a tribunal that tried and indeed executed six German saboteurs. No US citizens was involved, however.
The crime of treason is spelled out in the US Constitution. The wording in federal law is at 18 USC 2381:
“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
This law is almost never used, no matter how obvious the treachery of some Americans may be. Note: The domestic War Crimes Act also goes begging. See its easy-to-qualify-for provisions at 2441. Presumably there is a blockage in the Attorney General’s office that makes it “impossible” to prosecute treason and war crimes!
Hamdi and the Kavanaugh Confirmation Hearings
Hearings were held in 2018 in the US Senate, to confirm the appointment of Judge Brett Kavanaugh to the US Supreme Court. A question was asked that raised eyebrows. Some people thought Senator Lindsey Graham was seeking the nominee’s view on use of military commissions:
Senator Graham: “… there’s a longstanding history in this country that your constitutional rights follow you wherever you go, but you don’t have a constitutional right to turn on your own government and collaborate with the enemy of the nation. You’ll be treated differently. What’s the name of the case, if you can recall, that reaffirmed the concept that you can hold one of our own as an enemy combatant if they were engaged in terrorist activities in Afghanistan?”
Kavanaugh answered “Hamdi” but did not elaborate.
The War Between the States
A relevant historical “precedent” is one from the Civil War. President Abraham Lincoln dealt with the Confederates, who were attacking the nation, as “rebels.”
On April 27, 1861 the president suppressed the right of habeas corpus for rebels, allowing them to be held indefinitely without charge. That was successfully challenged in Merryman v Maryland, but to no avail.
The Rumor That Bush and McCain Died by Execution
A writer who is known only by the name G5, and who indicates that his career was in covert operations, published an article at GumshoeNews.com on December 7, 2018. He claims that certain Insiders conducted a trial of both President GHW Bush and Senator John McCain. This is G5 speaking:
“McCain was questioned by the Military. He lived up to his codename of ‘Songbird’. But had nothing to offer beyond what was already known. He was subsequently executed (The Espionage Act, Military Tribunal) by lethal injection. Well hidden by the issue of age and illness.
“George H W Bush was indicted and charged, 10 August, 2018, on money laundering, conspiring to violate the Logan Act, human trafficking, and racketeering under the RICO Act. He pleaded guilty. The back-up charges were his involvement in the assassination of JFK, and Project Hammer (9-11).
“The 9-11 charge involved the estimated $240 billion covert government securities that were to mature on the 12 September, 2001. Bush was executed by chemical means in hospital on 30 November, 2018, based on his guilty plea.”
If those two stories are true, note that they happened on Trump’s watch. The current rumor is that Ezra Cohen-Natwick, the current Undersecretary of Defense, is in charge of further operations, and that the pardoning of Michael Flynn may be relevant.
Long story short: AUMF could be said to cover — at a stretch – presidential use of force against “persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
The question of whether this includes US citizens was answered by the Hamdi ruling that a citizen can be an enemy combatant. It is possible that Trump is pursuing these matters.