The Torture Papers: The Road to Abu Ghraib, edited by Karen

Your relationship with government is simple: government knows everything about you, and you know nothing about government. In practice this means government can do whatever it wants to you before you know it's going to happen. Government policy makers think this is a good way of ensuring citizen compliance. Thus, all of these investigations are retrospective -- they look back at the squirrely shit that government has pulled, and occasionally wring their hands about trying to avoid it happening in the future. Not inspiring reading, but necessary if you are to face the cold reality that Big Brother is more than watching.

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:00 pm

PART 1 OF 2

MEMO 13

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

February 26, 2002

MEMORANDUM FOR WILLIAM J. HAYNES, II, GENERAL COUNSEL, DEPARTMENT OF DEFENSE

RE: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan

You have asked a series of questions concerning legal constraints that may potentially apply to interrogation of persons captured in Afghanistan. Several of the issues you have raised relate to the applicability of the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), to interrogations that may be conducted for various purposes (and by various personnel) ranging from obtaining intelligence for military operations and force protection to investigating crimes with a view to bringing subsequent prosecutions. As explained below, the Self-Incrimination Clause of the Fifth Amendment, as interpreted by the Supreme Court in Miranda, provides a trial right in a criminal prosecution before U.S. courts and governs the admissibility of statements made by the defendant in a custodial interrogation. The issue of the applicability of Miranda and restrictions it may place on conduct in interrogations, therefore, is best addressed in the context of the subsequent use that is made of statements obtained in custodial interrogation.

As we explain below, the Self-Incrimination Clause (and hence Miranda) does not apply in the context of a trial by military commission for violations of the laws of war. Accordingly, military commissions may admit statements made by a defendant in a custodial interrogation conducted without Miranda warnings. Therefore, to the extent that the only trial-related use of statements obtained in an interrogation will be before a military commission, there is no need to provide Miranda warnings.

As we understand it, the inquiry cannot end there because decisions have not yet been made concerning whether individuals being interrogated will be prosecuted and if so in what forum charges will be brought. The possibility still exists that some detainees may be prosecuted on criminal charges in Article III courts. Thus, you have asked how Article III courts may treat statements obtained in various scenarios without Miranda warnings and whether Miranda warnings should be given as a prudential matter to preserve the possibility of using statements in a criminal trial. Although unwarned statements made in the course of custodial interrogation by law enforcement officers are generally presumed to be compelled under Miranda, thereby rendering them inadmissible in criminal prosecutions before domestic courts, Miranda does not provide an iron-clad rule governing the voluntariness of all custodial statements. Miranda was designed to provide a constitutional rule of conduct to regulate the practices of law enforcement, and where its deterrent rationale does not apply, the Supreme Court has not extended it. Many of the interrogations in question here, which will be conducted for purposes of obtaining information for military operations and intelligence purposes, do not come within the rationale of Miranda. In addition, one of the specific exceptions to Miranda that the Supreme Court has crafted should extend, by a close analogy, to some of the interrogations contemplated here. We divide our discussion to address four categories of statements the United States may wish to admit into evidence in a subsequent criminal prosecution: (1) statements arising out of interrogation conducted by military and intelligence personnel to develop military operations and intelligence information; (2) statements obtained for criminal law enforcement purposes, whether by FBI interrogators or military personnel; (3) statements obtained in the course of a war crimes investigation by members of the criminal investigative services of one of the U.S. Armed Forces; and (4) statements obtained where the objectives of the questioning may be mixed, and the interrogation thus may not fall squarely into only one of the first three categories.

We conclude that the first category of statements is likely to be admissible in an Article III trial even if the statements are obtained without Miranda warnings. Statements from the second category are likely to be inadmissible if they arise from unwarned interrogation. There is a substantial risk that courts will apply Miranda to the third category as well. Finally, in the fourth category -- where the objectives of the questioning may be mixed -- results may be highly fact-dependent, but we believe that the subjective motivations of interrogators in pursuing particular questions should not alter the conclusion that an interrogation conducted for obtaining military and intelligence information should not require Miranda warnings.

We also explain that, even after statements are obtained in an unwarned custodial interrogation governed by Miranda, any subsequent, Mirandized confessions would be admissible in an Article III court, at least so long as any prior, unwarned interrogation did not involve coercion, or where there was an adequate break in events between any coercion and the subsequent, properly Mirandized interrogation.

Finally, in response to your other inquiries, we explain that the Sixth Amendment right to counsel does not apply prior to the initiation of adversary judicial criminal proceedings, and thus is not likely to apply to persons seized in Afghanistan and held overseas. In addition, the Citizens Protection Act, 28 U.S.C. § 530B (Supp. IV 1998), commonly known as the McDade Act -- which places restrictions on government attorneys' conduct with respect to interrogations -- does not apply to Defense Department lawyers.

I. The Self-Incrimination Clause Provides a Trial Right

As the Supreme Court has explained, the Self Incrimination Clause of the Fifth Amendment, on which the Miranda decision is premised, is a "trial right of criminal defendants." United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). The clause provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V (emphasis added). "The Amendment has its roots in the Framers' belief that a system of justice in which the focus is on the extraction of proof of guilt from the defendant himself is often an adjunct to tyranny and may lead to the conviction of innocent persons. Thus, a violation of the constitutional guarantee occurs when one is 'compelled' by governmental coercion to bear witness against oneself in the criminal process." Duckworth v. Eagan, 492 U.S. 195, 209 (1989) (O'Connor, J., concurring).

The protection of the Self-Incrimination Clause is not limited, however, to statements compelled during the course of a court proceeding. Rather, it extends to prior statements subsequently introduced into evidence at a court proceeding. Beginning with Bram v. United States, 168 U.S. 532 (1897), the Supreme Court has held that the Clause bars the introduction in federal cases of involuntary confessions made during certain forms of custodial interrogation. See also Withrow v. Williams, 507 U.S. 680, 688 (1993). In Miranda, the Court held that the privilege against self-incrimination prohibits the admission into evidence of statements given by a suspect to the police during custodial interrogation unless a prior warning has been given advising the defendant of his rights. See 384 U.S. 436 (1966); see also Illinois v. Perkins, 496 U.S. 292, 296 (1990); Duckworth, 492 U.S. at 201 (in Miranda, "the Court established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation"). The Court in Miranda "presumed that interrogation in certain custodial circumstances is inherently coercive and ... that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forego those rights." New York v. Quarles, 467 U.S. 649, 654 (1984) (footnote omitted). In the years since first announcing the Miranda presumption, the Supreme Court has "frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated [in Miranda], his responses cannot be introduced into evidence to establish his guilt." Berkemer v. McCarthy, 468 U.S. 420, 429 (1984).

It bears repeating that the Miranda presumption is premised on the "trial right of criminal defendants" provided by the Self- Incrimination Clause. Verdugo-Urquidez, 494 U.S. at 264 (emphasis added). The "sole concern" of that Clause, the Supreme Court has explained, is "insur[ing] that the testimony cannot lead to the infliction of criminal penalties on the witness." Kastigar v. United States, 406 U.S. 441, 453 ( 1972). Thus, "[a]lthough conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." Verdugo-Urquidez, 494 U.S. at 264 (emphasis added). [1] Thus, neither the Self-Incrimination Clause nor Miranda established a free-floating code of conduct regulating the manner in which agents of the federal government may conduct interrogations in any and all circumstances. In other words, neither the Self-Incrimination Clause nor Miranda prohibits an unwarned custodial interrogation as a constitutional violation in itself. Accordingly, it confuses analysis somewhat to speak in terms of an FBI or military interrogator "violating" Miranda or the Fifth Amendment simply by conducting an unwarned custodial interrogation. Whether or not Miranda applies to a given circumstance or requires warnings can only be assessed in view of the use the government makes of statements obtained in the interrogation. If the government never uses the statement in a criminal prosecution where the Self-Incrimination Clause applies, no question of a Miranda "violation" can ever arise. See Quarles, 467 U.S. at 686 (Marshall, J., dissenting) ("[T]he police are free to interrogate suspects without advising them of their constitutional rights. ... All the Fifth Amendment forbids is the introduction of coerced statements at trial.").

In addition, in addressing the scope of proper application of the Miranda warnings, it is critical to bear in mind that the Supreme Court has made clear both in Miranda and in subsequent decisions that the purpose of the Miranda rule is to provide a rule of conduct for law enforcement officers to prevent practices that might lead to defendants making involuntary statements. As the Court put it in Miranda, its goal was to set out "concrete constitutional guidelines for law enforcement agencies and courts to follow." 384 U.S. at 442. The Court has not treated Miranda as establishing an immutable rule that any statement made in any unwarned, custodial interrogation is necessarily involuntary under the Fifth Amendment and cannot be admitted at trial. Rather, in circumstances where the purpose of regulating the conduct of law enforcement officers would not be served, or is outweighed by other considerations, the Court has consistently declined to require that the Miranda procedures be followed in order for a custodial statement to be deemed admissible. For example, in New York v. Quarles, the Court held that when the police arrest a suspect under circumstances presenting an imminent danger to the public safety, they may, without informing him of his Miranda rights, ask questions necessary to elicit information that would neutralize the threat. The Court concluded that in such circumstances, the need to ensure public safety outweighed any benefit that might be gained from the ordinary rule of requiring Miranda warnings. 467 U.S. at 657. Similarly, in Harris v. New York, 401 U.S. 222 (1971), the Court sanctioned the use of statements obtained without Miranda warnings for purposes of impeaching a defendant upon cross-examination. Again, the Court explained that the goal of shaping the conduct of law enforcement officers did not require extending Miranda to exclude the use of unwarned statements for purposes of cross examination: "Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief." Id. at 225.

As explained in more detail below, moreover, the Court's decisions limiting Miranda to circumstances where the purposes of Miranda's judicially crafted code of conduct would be served have not been undermined by the recent pronouncement that Miranda states a constitutional requirement. See Dickerson v. United States, 530 U.S. 428 (2000). The Dickerson Court did not suggest that Miranda warnings are an absolute prerequisite for any custodial statement to be voluntary under the Fifth Amendment and that any statement obtained without the warnings is necessarily inadmissible. Rather, Dickerson expressly endorsed past decisions such as Quarles and Harris that made exceptions to the requirements of Miranda warnings and explained that they simply "illustrate the principle ... that no constitutional rule is immutable." Id. at 441.

II. Trials by Military Commissions

The Self-Incrimination Clause does not apply to trials by military commissions for violations of the laws of war. The Clause is limited by its terms to "any criminal case," U.S. Const., Amend. V, and the Supreme Court has long understood the rights guaranteed by the amendment to be limited to the scope they had at common law in criminal prosecutions at the time of the founding. See, e.g., Ex parte Quirin, 317 U .S. 1, 39-40 (1942); Ex parte Wilson, 114 U.S. 417, 423 (1885) ("The Fifth Amendment, declaring in what cases a grand jury should be necessary, ... in effect, affirm[ed] the rule of the common law upon the same subject."). In Quirin, the Court concluded that a trial by military commission for violations of the laws of war was not a criminal prosecution that required a grand jury indictment at common law and thus expressly held that the Fifth Amendment's requirement of indictment by grand jury does not apply to military commissions. See Quirin, 317 U.S. at 40. See also Application of Yamashita, 327 U.S. 1 (1946). Under the same reasoning, the Self-Incrimination Clause also does not constrain the evidence that military commissions may receive. Trials by military commissions are not "criminal case[s]" within the terms of the Amendment. Rather, they are entirely creatures of the President's authority as Commander-in-Chief under Article II and are part and parcel of the conduct of a military campaign. [2] As a result, they are not constrained by the strictures placed on "criminal case[s]" by the Self-Incrimination Clause (or other provisions in the Bill of Rights). As the Quirin Court stated broadly (albeit in dicta), "the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission." 317 U.S. at 45. Cf Miller v. United Slates, 78 U.S. (11 Wall.) 268, 305 (1870) ("the war powers of the government ... are not affected by the restrictions imposed by the Fifth and Sixth Amendments").

Accordingly, incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda. Cf United States v. Bin Laden, 132 F. Supp. 2d 168, 181, 182 n.10 (S.D.N.Y. 2001) (distinguishing, for purposes of application of the Fifth Amendment, "proceeding[s]" against "'subject[s] of a foreign state at war with the United States'" and "operated pursuant to a temporary military commission specially constituted under the authority of the Joint Chiefs of Staff" from criminal trials before Article III courts (quoting Johnson v. Eisentrager, 339 U.S. 763, 769) n.2 (1950)); Id. at 189 ("Miranda only prevents an unwarned or involuntary statement from being used as evidence in a domestic criminal trial"). [3]

Moreover, with respect to trials of foreign nationals conducted outside U.S. territory, our conclusion is additionally supported by the well-established fact that the Fifth Amendment does not confer rights upon aliens outside the sovereign territory of the United States. See Verdugo-Urquidez, 494 U.S. at 269 ("we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States"); Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) (finding "no authority whatever for holding that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses"); cf United States v. Curtiss Wright Export Carp. , 299 U.S. 304, 318 (1936) ("Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens. ..."). Accordingly, U.S. military tribunals convened abroad are not required to grant aliens rights under the Self-Incrimination Clause.

III. Criminal Trials Before Article III Courts

Although the Self-Incrimination Clause of the Fifth Amendment does not confer rights upon aliens outside the sovereign territory of the United States, no issue of extraterritoriality would be involved if aliens were brought into the United States for trial in an Article III court. As the Supreme Court has explained, "[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants." Verdugo-Urquidez, 494 U.S. at 264. Any violation of the right would occur at the trial conducted here in the United States when statements made by the accused were offered into evidence.

The Supreme Court has never squarely held that the Self-Incrimination Clause applies in the criminal trial of an alien whose only connections to the United States consist of an attack on the country followed by his arrest overseas and transportation to the United States to stand trial. The United States, moreover, has recently argued in at least one case that the Self-Incrimination Clause does not apply in such a trial. See Bin Laden, 132 F. Supp. 2d at 181 & n.8. [4]

As a matter of original interpretation of the Fifth Amendment, there may be sound reasons for concluding that the Self- Incrimination Clause does not apply to a trial of an alien whose only connections to this country consist of the commission of a federal crime (perhaps taking place entirely abroad) and involuntary transportation to this country to stand trial. The Clause states: "nor shall any person ... be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. In extending this right to "any person," the Framers may have intended to encompass only a limited class of "person[s]" who could claim the protections of the Constitution. Some support for this interpretation can be found in the analysis the Supreme Court has applied in holding that the Fifth Amendment does not apply extraterritorially. In Johnson v. Eisentrager, the Court made clear that the terms of the amendment cannot be read literally to confer rights on "any person" -- a reading that would include aliens overseas who had no connection whatsoever to the United States. As Justice Kennedy summarized in Verdugo-Urquidez, "the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens, who are beyond our territory." 494 U.S. at 275 (Kennedy, J., concurring). In describing the limitations on the class of "person[s]" to whom the Fifth Amendment extends, the Court explained that the alien "has been accorded a generous and ascending scale of rights as he increases his identity with our society." Eisentrager, 339 U.S. at 770. Arguably, an alien whose only connection with the United States is an attack upon the country (or its citizens) followed by his arrest overseas and transportation to the United States to stand trial has not established any sort of connection with the country that warrants allowing him the protections of the Fifth Amendment.

Nevertheless, whatever the merits of such an interpretation as an original matter, we understand that your inquiry concerns the likely treatment of the Self-Incrimination Clause given the current state of the Supreme Court's jurisprudence. Approaching the question on that basis, we believe that the Supreme Court's analysis in prior decisions points to the conclusion that the Self-Incrimination Clause would likely be applied in a criminal trial of an alien in the United States even if the alien had no previous connection to this country. That is because the Court's decisions generally reflect a view that any criminal prosecution within the territorial boundaries of the United States is constrained by the requirements of the Fifth Amendment. Even in Eisentrager, for example, the Court's analysis centered repeatedly on the absence of the aliens in question from the territorial jurisdiction of the United States. See 339 U.S. at 769-78; Id. at 771 ("[I]n extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within the territorial jurisdiction that gave the Judiciary power to act.") (emphasis added).

More importantly, in Wong Wing v. United States, 163 U.S. 228 (1896), the Court long ago concluded that the Fifth Amendment rights to grand jury indictment and due process applied to aliens subject to criminal punishment within the United States, see id. at 238. The Court's textual analysis of the Amendment focused on its broad terms guaranteeing that no "person" should be subject to certain treatments and concluded that it should have broad application covering all persons. Thus, the Court first noted that the Fourteenth Amendment's Due Process and Equal Protection Clauses, like the Fifth Amendment, speak in terms of rights guaranteed to "any person." See id. The Court explained that "[t]hese provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality." Id. It concluded that "[a]pplying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments." Id.

On its face, the analysis in Wong Wing was not limited to aliens who had established particular connections with this country. To the contrary, the Court framed its reasoning in terms applicable to aliens who had established no ties to the country because they had never effected a lawful entry into the United States. It thus contrasted Congress's power to "forbid aliens or classes of aliens from" entering the country with its power to subject "such aliens to infamous punishment at hard labor," which could be done only through "a judicial trial to establish the guilt of the accused." Id. at 237. Similarly, in one of the decisions marking the most restrictive view of the extraterritorial application of the Constitution -- denying its application even to citizens abroad -- the Court has stated in dicta that the constitutional guarantees in the Fifth and Sixth Amendments "apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere." Ross v. McIntyre, 140 U.S. 453, 464 (1891) (emphasis added). Taking a similar territorial approach, the Court has held that the Fifth Amendment's Due Process Clause applies to aliens even if their "presence in this country is unlawful, involuntary, or transitory." Matthews v. Diaz, 426 U.S. 67, 77 (1976). [5]

To be sure, in Verdugo-Urquidez the Court stated that Wong Wing addressed "resident aliens" and thus the decision cannot avail "an alien who has had no previous significant voluntary connection with the United States." 494 U.S. at 271. See also id. ("These cases, however [including Wong Wing], establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country."). Despite that characterization, however, as noted above the analysis in Wong Wing did not distinguish between resident aliens and other aliens, and in subsequent cases since Verdugo-Urquidez the Court has described the decision in broader terms -- terms consistent with the view that the Self-Incrimination Clause would apply to criminal trials of any aliens in the United States. See Zadvydas v. Davis, 121 S. Ct. 2491, 2501 (Wong Wing held that "all persons within the territory of the United States are entitled to the protection" of the Fifth Amendment, noting that decisions limiting application of constitutional rights to aliens "rested upon a basic territorial distinction"); see also id. at 2506 (Scalia, J., joined by Thomas, J., dissenting) (suggesting that Wong Wing draws no distinction between "aliens arrested and detained at the border" before entry and those already within the country).

The analysis in Verdugo-Urquidez itself, moreover, on balance tends to suggest that the present Court would be inclined to reach the same conclusion. Verdugo-Urquidez involved the application of the Fourth Amendment to searches and seizures conducted by U.S. law enforcement personnel on an alien's property outside the United States. In approaching that issue, the Court framed its entire analysis by first distinguishing the Fifth Amendment and explaining that the Fourth Amendment "operates in a different manner than the Fifth Amendment, which is not at issue in this case." 494 U.S. at 264. The Fifth Amendment, the Court emphasized, provides a "fundamental trial right," rather than directly regulating the conduct of police prior to trial. Id. In addition, the Court based its analysis largely on the particular terms of the Fourth Amendment, which limit the right it describes to "the people." Id. The Court emphasized that this limitation "contrasts with the words 'person' and 'accused' used in the Fifth and Sixth Amendments regulating procedure in criminal cases," thus suggesting that the procedure in criminal cases (within the United States) would be the same for all persons. Id. at 265-66. See also id. at 265 (the Fourth Amendment "by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people"') (emphasis added); id. at 269 (noting that the Fifth Amendment "speaks in the relatively universal term of 'person"'). Justice Kennedy, moreover, who provided the fifth vote for the majority, also wrote separately and noted that, where the "United States is prosecuting a foreign national in a court established under Article III, ... all of the trial proceedings are governed by the Constitution." Id. at 278 (Kennedy, J., concurring). Given the Court's explicit acknowledgment of the textual differences between the Fourth Amendment and the Fifth Amendment, we think that Verdugo-Urquidez does not provide strong support for the claim that the Fifth Amendment does not apply to the trial in the United States of an alien who has no previous connections with this country.

Finally, it bears noting that the Court has consistently described the Self-Incrimination Clause as a fundamental trial right that is critical for protecting the integrity of the trial process. At times the Court has suggested that the Clause plays a critical role in ensuring the reliability of confessions and thus protects the truth-finding function of a trial. See, e.g., Application of Gault , 387 U.S. 1, 47 ( 1967) ("The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are reliable expressions of the truth."); Molloy v. Hogan, 378 U.S. 1, 7-8 (1964) ("[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and ... the Fifth Amendment privilege is its essential mainstay. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.") (citation omitted). At other points the Court has stressed that the privilege is critical "to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution 'shoulder the entire load."' Tehan v. United States ex rel. Shott, 382 U.S. 406, 415 (1966); see also id. at 416 ("[T]he Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth."). Under either rationale, the protection provided by the Clause is treated as critical for the integrity of the trial process itself. It thus seems likely that the Court would conclude that it applies in any criminal case, regardless of the status of the defendant as an alien.

Lower courts that have addressed the issue (albeit only in dicta in some cases), have concluded that the Self-Incrimination Clause does apply to trials of aliens, even if they have not established any connection with this country. [6]

The conclusion that the Self-Incrimination Clause will likely apply in any future trial, however, does not in itself answer the question how the decision in Miranda will apply. Under Miranda, evidence developed from custodial interrogation is not inflexibly presumed to be compelled, and thereby rendered inadmissible, simply because interrogators have neglected to provide the warnings outlined in Miranda. Not all custodial interrogation is subject to Miranda's requirements. We address below four kinds of statements that the United States might wish to admit into evidence in an Article III trial: (1) statements arising out of interrogations intended to develop military operations and intelligence information; (2) statements obtained for criminal law enforcement purposes, whether by FBI interrogators or military personnel; (3) statements obtained in the course of a war crimes investigation by members of the criminal investigative services of one of the U.S. Armed Forces; and (4) statements obtained in an interrogation that may have mixed objectives and does not fall purely into only one of the previous categories. We conclude that the first category of evidence is likely to be admissible in an Article III trial even if Miranda warnings are not given. The second category of evidence is likely to be inadmissible unless the interrogators comply with Miranda. There is a substantial risk that courts will apply Miranda to the third category as well. Finally, for interrogations in the fourth category, results will likely turn on a highly fact-dependent inquiry.

A. Questioning by military and intelligence personnel for military operations and intelligence information

We conclude that statements obtained in the course of interrogation by military and intelligence personnel for purposes of gathering intelligence and military operations information need not satisfy Miranda standards in order to be admitted at an Article III criminal trial. Our conclusion is based on two separate, independent grounds. First, although Miranda establishes a presumption that statements made during unwarned custodial interrogation are involuntary, and thus inadmissible at trial under the Self-Incrimination Clause, Miranda and its progeny make clear that this presumption of involuntariness is not immutable or universally applicable. In particular, the Court has treated Miranda as a rule designed to guide the conduct of officials in law enforcement agencies and has repeatedly limited the reach of Miranda's warning requirements based on the need for regulating the conduct of law enforcement officers. The fundamental objective of regulating that conduct has no application whatsoever in the context of interrogations of battlefield detainees for purposes of obtaining intelligence and military operations information. Under the reasoning that the Supreme Court has used to define the limits of Miranda, we conclude that interrogators engaged in such questioning need not give Miranda warnings to ensure that voluntary statements will be admissible in a later criminal trial. Second, we conclude that the established public-safety exception to Miranda should extend by analogy to interrogations of battlefield detainees for purposes of gathering intelligence and military operations information.

I. Miranda's deterrence rationale does not apply

As previously explained, the Supreme Court crafted the requirements of Miranda as a means for implementing the protections of the Self Incrimination Clause. In Miranda, the Court held that, because the environment in a custodial police interrogation "contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," 384 U.S. at 467, confessions made during the course of such custodial interrogation are presumptively involuntary and, unless certain warnings are given to defuse the coerciveness of the environment, must be excluded at trial under the Self-Incrimination Clause. See generally Dickerson v. United States, 530 U.S. 428 (2000). If Miranda stated an immutable presumption concerning the voluntariness of custodial statements, it might well mean that in any custodial interrogation -- even an interrogation of a battlefield detainee undertaken to obtain information for military operations -- Miranda warnings would have to be given for any statements to be admissible at a later trial. Interrogation in the custody of the armed forces after capture on the battlefield might be considered at least as inherently coercive a scenario as questioning in custody at a police station. And if Miranda provided an absolute rule concerning the voluntariness of statements in such a custodial interrogation, it might be read to mean that statements obtained in a military interrogation could not be used in a subsequent criminal trial if the requisite warnings had not been given.

The Supreme Court, however, has never taken such an approach to Miranda. To the contrary, the Court has emphasized that the presumption crafted in Miranda and the warnings outlined there were intended to establish guidelines for the conduct of law enforcement officers pursuing criminal investigations. Although the purpose of the guidelines was to ensure the voluntariness of any statements obtained from custodial interrogations, the standards of conduct were not intended to set down an inflexible rule for evaluating voluntariness under the Fifth Amendment. The focus of Miranda, in other words, is not establishing a universally applicable (and constitutionally mandated) standard for measuring the voluntariness of statements made in any custodial situation. Rather, it is designed to provide rules of conduct specifically for the guidance of U.S. law enforcement officials -- or, as the Court put it, "concrete constitutional guidelines for law enforcement agencies and courts to follow." Miranda, 384 U.S. at 442. [7] See also Dickerson, 530 U.S. at 434-35 (quoting same language from Miranda). Thus, the Supreme Court has repeatedly emphasized that the requirements of Miranda are designed to regulate the conduct of custodial interrogations arising out of criminal law enforcement investigations. The Miranda Court focused its concern on "police" interrogation and practices, and in later cases the Court has emphasized that the rationale behind Miranda is providing a "deterrent effect on proscribed police conduct." Harris, 401 U.S. at 225. Similarly, in Thompson v. Keohane, 516 U.S. 99 (1995), the Court described Miranda in terms of the requirements it imposed on "law enforcement officers." Id. at 107. See also Quarles, 467 U.S. at 656 ("The Miranda decision was based in large part on this Court's view that the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation. ..."); Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices"); Fare v. Michael C. , 442 U .S. 707, 718 ( 1979) ("Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation. ..."). When the Court has applied Miranda to interrogation by government officials other than law enforcement agents, it has done so based upon some finding of a nexus between the interrogation in question and criminal law enforcement. See, e.g., Mathis v. United States, 391 U.S. 1, 4 (1968) (applying Miranda to interview conducted by Internal Revenue Service agents with person in state custody largely upon basis that "tax investigations frequently lead to criminal prosecutions"); Estelle v. Smith, 451 U.S. 454, 466-69 (1981) (applying Miranda to court-ordered psychiatric examinations of criminal defendants); United States v. Mata-Abundiz, 717 F.2d 1277, 1279-80 (9th Cir. 1983) (applying Miranda to INS questioning of criminal suspect); United States v. Gupta, 183 F.3d 615, 617-18 (7th Cir. 1999) ("Miranda ... is a mismatch for the immigration process, at least at the outset. ... Much more difficult is the question when ... the criminal investigation is far enough advanced [to trigger Miranda]."); see also 2 Wayne R. LaFave et al., Criminal Procedure § 6.10(c), at 622 (2d ed. 1999) ("[T]he courts have generally held that government agents not primarily charged with enforcement of the criminal law are under no obligation to comply with Miranda.").

Where the rationale of shaping the conduct of law enforcement officers does not apply or is outweighed by other considerations, the Court has consistently concluded that Miranda's requirements do not apply and that statements obtained during custodial interrogation without Miranda warnings may still be introduced into evidence consistent with the Fifth Amendment's prohibition on compelled testimony. Thus, in New York v. Quarles, the Court concluded that where police need to obtain information critical for ensuring public safety, they need not provide Miranda warnings before initiating custodial questioning. 467 U.S. at 657-58. And in Harris v. New York, the Court concluded that Miranda's purpose of providing a deterrent to regulate police conduct would be served sufficiently if un-Mirandized statements were excluded solely from the prosecution's case in chief, but were permitted for impeachment purposes on cross- examination. See Harris, 401 U.S. at 225 ("Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief."). As the Harris Court explained, the benefits in terms of guiding conduct that would be derived from precluding the use of an unwarned statement upon cross-examination were too speculative and attenuated to outweigh the clear benefits that admitting the statements would provide in aiding "the jury in assessing [the defendant's] credibility." Id. The Court has thus demonstrated that the deterrent rationale behind Miranda limits the range of situations in which the case will be applied.

Similarly, drawing on the Supreme Court's analysis in Miranda and its progeny, lower courts have identified other situations where Miranda's goal of shaping police conduct has no application and where Miranda's warning requirements therefore do not apply. For example, federal courts have repeatedly admitted unwarned custodial statements obtained by foreign police officers. [8] [9] If Miranda provided an immutable rule that an unwarned statement made in custodial interrogation is necessarily involuntary, such statements would be absolutely barred from use at trial under the Self-Incrimination Clause, regardless of whether they were obtained by foreign police or anyone else. Such statements are admitted into evidence, however, because the rationale behind Miranda -- shaping police conduct -- does not apply to foreign police. Foreign police, of course, are not subject to the requirements of the federal Constitution, and there is thus no basis for attempting to force them to comply with Miranda's guidelines. Moreover, excluding statements obtained by foreign police without Miranda warnings would have no practical deterrent effect, because ensuring admissibility of evidence in U.S. courts is not a relevant incentive for police in another nation. As one court of appeals has explained,

the United States Constitution cannot compel such specific, affirmative action by foreign sovereigns, so the policy of deterring so-called 'third degree' police tactics, which underlies the Miranda exclusionary rule, is inapposite to this case. Here the statements were not coerced, as revealed by testimony at the original trial which we have scrutinized. The evidence was therefore admissible.


Kilday v. United States, 481 F.2d 655 (5th Cir. 1973) (citations omitted). [10]

The Supreme Court's recent declaration that Miranda is a "constitutional decision," Dickerson, 530 U.S. at 438, does not alter the above analysis. It might be argued that after Dickerson, Miranda must be understood as a "constitutional rule" establishing a fixed test for determining whether statements are "compelled" for purposes of the Fifth Amendment. Cf: id. at 455-56 (Scalia, J., dissenting) (suggesting that this must be the implication of the Court's decision). That gloss on Dickerson might be used to cast doubt on the exceptions to Miranda noted above based on the theory that the exceptions are rooted in the mistaken idea that Miranda sets a prophylactic rule that is not constitutionally required. In Quarles, for example, the Court based its analysis in part on the statement that "[t]he prophylactic Miranda warnings therefore are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.'" 467 U.S. at 654. [11] Now that the Court has made clear that Miranda is a constitutional requirement in its own right, the argument would go, practical considerations such as deterrence cannot limit the application of Miranda's rules.

That approach, however, distorts Dickerson. In establishing Miranda as a constitutional rule, Dickerson merely held that the body of law established by Miranda and its progeny set constitutional requirements determined by the Court that could not be disturbed by an act of Congress. [12] Nowhere did the Dickerson Court suggest that it was radically reforming the rationale behind Miranda and later cases to make Miranda an inflexible constitutional determination that all unwarned custodial statements are necessarily "compelled" testimony under the Fifth Amendment. Instead, the Court treated Miranda, as the language from the original decision itself suggests, as "constitutional guidelines for law enforcement agencies" crafted by the Court. 384 U.S. at 442. Because they were defined by the Court as constitutional requirements, Congress could not modify them, but in the Court's view, that did not mean that courts could not define limits on Miranda based on the same balancing of interests outlined in the cases above (and employed by courts in other constitutional contexts). In keeping with that understanding, the Court never cast doubt on the various limitations and exceptions to Miranda already embedded in the Court's jurisprudence. To the contrary, Dickerson explicitly embraced the Court's existing decisions. Addressing the decisions in Quarles and Harris specifically, the Court stated that they "illustrate the principle -- not that Miranda is not a constitutional rule -- but that no constitutional rule is immutable." 530 U.S. at 441. The Court concluded that "the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision," id. (emphasis added), and held that Miranda "and its progeny in this Court" continue to "govern the admissibility of statements made during custodial interrogation in both state and federal courts" id. at 432 (emphasis added). Thus, as one court of appeals has observed, "the Dickerson majority expressly incorporated existing decisions, like Quarles, into the 'constitutional' right to a Miranda warning it elucidated in Dickerson." United States v. Talley, 275 F.3d 560, 564-65 (6th Cir. 2001).

There is certainly nothing in Dickerson that expands Miranda to require warnings in all forms of custodial interrogation. In fact, the Dickerson Court repeatedly recognized that the core function of Miranda was to address "the advent of modern custodial police interrogation," which "brought with it an increased concern about confessions obtained by coercion." 530 U.S. at 434-35 (emphasis added). See also id. at 443 ("Miranda has become embedded in routine police practice") (emphasis added); id. (discussing the "impact of the Miranda rule on legitimate law enforcement") (emphasis added). Nowhere in the opinion did the Court indicate any inclination to depart from past practice and unhinge the scope of Miranda from the rationale of regulating U.S. law enforcement officers that has guided the Court in the past.

The same logic that has underpinned the exceptions to Miranda outlined above demonstrates that Miranda warnings have no application in interrogations conducted by military and intelligence officers for purposes of gathering intelligence and military operations information from a battlefield detainee. Nothing in the Court's explanation of Miranda and its progeny applies to, or even addresses, the interrogation of enemy prisoners in a military theater of operations for the purpose of obtaining military and intelligence information. Applying Miranda's requirements in this context would do nothing to advance the goal that the Supreme Court has repeatedly treated as a guiding factor in determining the scope of Miranda -- namely, regulating the conduct of law enforcement officials in criminal investigations. Indeed, where an interrogation is conducted for obtaining military operations and intelligence information, Miranda's concerns for regulating questioning in the law enforcement context are irrelevant. The goal in such a scenario is not to carefully balance the rights of a criminal defendant under our constitutional system against the needs of law enforcement, but rather to ensure that our troops and intelligence officers can extract as much useful information as possible for protecting our troops and securing our military objectives. The Court's stated concerns for providing "constitutional guidelines for law enforcement agencies and courts," in other words, are a mismatch for this context. Miranda, 384 U .S. at 442.

The conclusion that the purposes of Miranda would not be served by applying the decision to interrogations conducted for military operations and intelligence information is bolstered by the fact that restrictions imposed by the Fourth, Fifth, and Sixth Amendments generally do not apply to the actions of our armed forces in an armed conflict. This Office recently opined that the Fourth Amendment does not apply to United States military actions, both within the United States and abroad, taken to combat terrorists in the wake of the September 11 attacks. See Memorandum for Alberto R. Gonzales, Counsel to the President & William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General & Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force To Combat Terrorist Activities Within the United States. at 22-34 (act. 23, 2001). As we explained, in reversing a lower court decision to apply the Fourth Amendment extraterritorially to non-U.S. citizens, the Supreme Court pointed out the untenable consequences of applying the Fourth Amendment to United States military operations abroad. See Verdugo-Urquidez, 494 U.S. at 273-74. Such a rule would result in applying the Fourth Amendment "also to other foreign policy operations which might result in 'searches or seizures'" -- a result that "would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries." Id. at 273. The Court explained:

The United States frequently employs Armed Forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security. ... Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest ... [and] plunge [the political branches] into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad.


Id. at 273-74 (citations omitted). The Court further noted that in 1798 during the Quasi War with France, Congress authorized President Adams to order the seizure of French vessels on the high seas) and "it was never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this." Id. at 268. Thus, within the first decade after the Constitution's ratification, the Fourth Amendment was understood not to restrict military operations against the Nation's enemies.

Likewise, the Just Compensation Clause of the Fifth Amendment does not attach to actions taken as a matter of military necessity by United States Armed Forces in the field, even when those actions entail the destruction of property owned by United States citizens (and, indeed, even when the destruction occurs within the territory of the United States). The general rule is that "the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field." United States v. Pacific R.R., 120 U.S. 227, 239 (1887).

We believe that, as in the above cases, "significant and deleterious consequences," Verdugo-Urquidez, 494 U.S. at 273, would result from applying Miranda to the interrogation of a prisoner who was apparently a member of a transnational terrorist group, who was captured while engaged in military operations against the United States and its allies, and who was being questioned for the purpose of gathering intelligence of military value to the United States in the conflict. Interrogation of enemy prisoners is a practical necessity for waging war effectively. Prisoners are always interrogated for information concerning their unit, enemy troop positions and strength, and other information that may be relevant to military operations in the area, to force protection, and (particularly in this conflict) to broader national security and intelligence objectives. Such interrogation serves the specifically military and intelligence objectives of the armed forces in the field of combat and the interests of national security. It is not, and is not intended to be, a part of the law enforcement apparatus of the United States. Subjecting the conduct of all such interrogations to the standards outlined in Miranda based on the possibility that some statements from an interrogation might later be used in a criminal trial would make no sense.
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:00 pm

PART 2 OF 2 (MEMO 13 CONT'D.)

To be sure, there is a distinction between applying the Fourth Amendment and other constitutional constraints to the conduct of military operations and "applying" Miranda to military interrogations. The Fourth Amendment, if applicable, would impose mandatory requirements on the conduct of the armed forces in the field. It would directly regulate the ways in which operations could be conducted and failures to comply would, in themselves, be violations of the Constitution. If Miranda applied, however, an unwarned custodial interrogation would not in itself constitute any constitutional violation. [13] Thus, in one sense, "applying" Miranda would not prohibit the government from conducting interrogations as it chooses; rather, it would simply put the government to the choice of following Miranda or foregoing the use of any statements in later criminal trials.

But that distinction does not make a difference for the analysis here. The entire purpose behind Miranda as a constitutional rule is to put constraints on conduct. Where the rationale for developing those constraints does not apply, the correct result under Miranda and its progeny is that Miranda itself does not apply. And for many of the same reasons that it makes no sense to have the Fourth Amendment constrain the conduct of military operations, it also makes no sense to have the constitutionally based rules for interrogations in Miranda apply.

2. Statements obtained during interrogations undertaken to obtain military or intelligence information should be admissible under the public safety exception

Even if the broader rationale for rejecting the application of Miranda outlined above were not accepted, we believe that statements obtained in the course of interrogation for purposes of gathering intelligence and military operations information would be admissible at trial in all Article III court under an exception to Miranda closely analogous to, and based upon the same rationale as, the "'public safety' exception" announced by the Supreme Court in New York v. Quarles, 467 U.S. 649 (1984).

In Quarles, the police had chased a rape suspect -- who was reportedly armed -- into a supermarket, where they arrested him, frisked him, and discovered an empty shoulder holster. A police officer asked the suspect, "Where is the gun?" Id. at 674. The suspect, gesturing toward a stack of soap cartons, replied, "The gun is over there." Id. The Court held that "on these facts there is a 'public safety' exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved." Id. at 655-56. The Court explained that in such a situation, the "need for answers to questions in a situation posing a threat to the public safety outweighs the need" for the "[p]rocedural safeguards" imposed by Miranda. Id. at 657. As the Court made clear in Quarles, the exception applies to "questions necessary to secure [police officers'] own safety or the safety of the public." Id. at 659. See, e.g., United States v. DeSantis, 870 F.2d 536, 539 (9th Cir. 1989) ("The 'public safety' exception ... was intended to protect the police, as well as the public, from danger."); United States v. Mobley, 40 F.3d 688, 693 (4th Cir. 1994) (Quarles applies to "such circumstances posing an objective danger to the public or police"); United States v. Khalil, 214 F.3d 111, 121 (2d Cir. 2000) (Quarles applies to statements about construction and stability of bombs seized during raid on defendant's apartment the night before).

We conclude that, where the interrogation of an enemy combatant captured in an area of military operations is at issue, the same reasoning applied in Quarles should apply to provide all exception from Miranda for questioning directed at eliciting information relevant to military operations and intelligence. If the police are permitted to bypass Miranda warnings in order to "secure their own safety or the safety of the public," 467 U.S. at 659, surely the exigencies of combat justify a similar exception for the interrogations contemplated here. As we understand it, interrogation of prisoners seized in battle is undertaken as a matter of course to determine information such as what units of the enemy forces are operating in the area, their position, strength, supply status, etc., as well as information of broader use for intelligence concerning enemy plans and capabilities for launching strikes against U.S. positions. In the context of an armed conflict, it seems readily apparent that all such information relates directly to the safety and protection of American troops, who are constantly exposed to the dangers of combat. In addition, in this conflict, given the demonstrated ability of the enemy to attack military and civilian targets around the globe, including within the United States (and given the repeated vows to continue such attacks), interrogations for intelligence and national security purposes may additionally develop information critical for thwarting further imminent loss of American lives far from the immediate scene of battle in Afghanistan. Thus, as in Quarles, the lives and safety of both the questioners and others will be directly at stake.

B. Interrogations for criminal law enforcement purposes

By contrast, we believe that statements obtained through interrogations conducted abroad for criminal law enforcement purposes -- whether by FBI interrogators or military personnel are unlikely to be admitted in an Article III criminal trial if Miranda requirements are not met. [14]

As outlined above, we believe that the Supreme Court would almost certainly conclude that the Self-Incrimination Clause applies to trials in Article III courts of aliens, even where an alien's only connection to this country is that he has been brought here to be tried. That in itself, however, does not automatically dictate that law enforcement officers interrogating aliens abroad to prepare for such prosecutions must be bound by the Miranda regime. There are sound arguments that the Miranda system of warnings, while a useful system for controlling the conduct of law enforcement officials operating in the United States, imposes an unwieldy burden in the vastly varying situations law enforcement officers must face while operating abroad. As some courts have noted, for example, when a suspect is in the custody of a foreign police force, some of the Miranda rights that are normally described to a suspect may not actually be available because they conflict with the law and procedures of the nation that has custody of the suspect. See, e.g., Bin Laden, 132 F. Supp, 2d at 188 ("foreign law may ... ban all manner of defense counsel from even entering the foreign stationhouse, and such law necessarily trumps American procedure"); United States v. Dopf; 434 F.2d 205, 207 (5th Cir. 1970) (Miranda satisfied where FBI agent told defendants held by Mexican officials that, because he had no jurisdiction in Mexico, "he could not furnish them with a lawyer in Mexico but [that he could] contact the American Consul on their behalf"). Even where, as here, the suspects are held by the United States government abroad, other factors may make the burdens of Miranda outweigh any benefits that Miranda may provide in deterring misconduct in run-of-the-mill prosecutions. In particular, it seems likely that when a battlefield detainee is being interrogated for military and intelligence information -- a process that may extend over many days or weeks -- the provision of Miranda warnings by other U.S. personnel who may wish to question the same detainee during the same time period for purposes of building a criminal case will make the detainee less likely to provide information vital to the objectives of military and intelligence questioning. In such a scenario, there is a sound argument that the disadvantages that will result from providing Miranda warnings (in terms of lost information of military and intelligence value) outweigh any benefits to be gained from applying Miranda as a device for regulating police conduct.

It is difficult to predict with any accuracy how the Court would receive such arguments concerning why Miranda should not be extended here. Nevertheless, we believe that the weight of authority suggests that courts would require Miranda warnings in interrogations conducted by U.S. personnel abroad for law enforcement purposes. Several courts of appeal have already held that when U.S. law enforcement officers interrogate a suspect abroad or direct the questioning carried out by foreign police who are acting essentially as their agents, Miranda warnings must be given for any statements to be admissible at trial in the United States. See Cranford v. Rodriguez, 512 F.2d 860, 863 (10th Cir. 1975); United States v. Heller, 625 F.2d 594, 599 (5th Cir. 1980). Similarly, earlier this year the Southern District of New York concluded that in prosecutions stemming from the al Qaeda bombings of U.S. embassies in Africa, "Miranda must apply to any portion of all overseas interrogation that is, in fact or form, conducted by U.S. law enforcement." Bin Laden, 132 F. Supp. 2d at 187 (emphasis added). The court justified its holding by relying in large part on cases holding that "the lack of Miranda warnings will still lead to suppression if U.S. law enforcement themselves actively participated in the questioning, or if U.S. personnel, despite asking no questions directly, used the foreign officials as their interrogationl agents in order to circumvent the requirements of Miranda." Id. (citations omitted). The same principle could be applied to ally interrogation conducted by U.S. personnel for law enforcement purposes -- even if conducted by the military. Thus, we believe that there is a substantial risk that an Article III court would regard any attempt by military officers to engage in unwarned interrogation for the sole purpose of either developing criminal charges or facilitating a criminal prosecution as an attempt to "circumvent the requirements of Miranda." Id.

That said, it may not be necessary under these circumstances to apply the full panoply of warnings and rights that would ordinarily be required under Miranda. Under normal conditions, Miranda requires that a suspect be warned not only that he has a right to remain silent and that his statements will be used against him, but also that he has a right to have counsel present and to have counsel appointed if necessary. By contrast, courts have found that, at least where an individual is in the custody of officials of another country, whose practices may limit access to counsel, there may be practical limitations on the right to counsel. In other words, the right to counsel as it would be applied in the United States applies only "if the particular overseas context actually presents no obvious hurdle to the implementation of an accused's right to the assistance and presence of counsel." Bin Laden, 132 F. Supp. 2d at 188. Even then, only "due care" is required to avoid "foreclos[ing] an opportunity" to be represented by counsel "that in fact exists" -- that is to say, only the opportunity to obtain counsel subject to the limits of applicable foreign law. Id. See also Cranford, 512 F.2d at 863 (FBI agents satisfied Miranda by advising suspect held abroad that he had right to consult U.S. Consul in Mexico rather than lawyer); Dopf, 434 F.2d at 206-7 (same). [15]

It is not clear whether analogous considerations would apply when the individual is in the custody of U.S. Armed Forces overseas. There may be strong arguments that providing a detainee appointed counsel while he is held by the armed forces is not a practical alternative (perhaps for reasons of security of the detention facility) and would unduly interfere with the military's own ongoing questioning of the subject for military and intelligence information. We could pursue further the extent to which modifications to the traditional Miranda warnings might be justified in this context if you so request.

C. Interrogations by investigative services of one of the U.S. Armed Forces investigating war crimes

We understand that members of the criminal investigative services of the individual branches of the U.S. Armed Forces may wish to interrogate persons in order to investigate the possible commission of war crimes for subsequent prosecution before military commissions. As noted in Part II of this memorandum, Miranda does not bar the admission of evidence in a proceeding before a military commission. We understand, however, that even if the armed forces begin interrogating an individual with a view to a military commission trial, the possibility remains that the individual will later be transferred to civilian custody for purposes of criminal prosecution before an Article III court in the United States. The question will then be whether Miranda bars any unwarned statements obtained by the military investigators.

Based on the analysis above, we believe that war crimes investigations by military personnel preparing for a possible trial by military commission are not the kind of law enforcement investigations that Miranda was intended to regulate. Although such investigations are, in some sense, "criminal" in nature, their primary purpose is the execution of the President's wartime power as Commander-in-Chief "to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war," and not his authority as the nation's chief law enforcement officer. Application of Yamashita, 327 U.S. 1, 11 (1946). [16] After all, "[t]he trial and punishment of enemy combatants who have committed violations of the law of war is ... a part of the conduct of war operating as a preventive measure against such violations." Id. (emphasis added). Miranda's guiding rationale based on regulating the conduct of law enforcement agencies does not properly apply in such a case. Thus, unwarned statements obtained by military investigators in that context should be admissible in a later trial in federal court.

Nevertheless, we caution that no courts have addressed this issue, the matter is not at all free from doubt, and there is a very substantial risk that a court would reach the opposite conclusion and decide that Miranda's requirements do properly apply. A court could conclude that, while interrogations of battlefield detainees for intelligence and information related to operations are one matter (and outside the ambit of Miranda), a different matter is presented when there is a switch to any form of criminal investigation -- even if the only intended objective at the time of the questioning is developing a case for a military commission trial. There is always the possibility that the investigation will lead to trial in an Article III court. Indeed, it might be argued that this possibility is enhanced here because the only person charged so far in relation to the attacks of September 11 has been charged in federal court (even though the attacks appear to involve several violations of the laws of war), and, in any event, some war crimes can also be prosecuted as violations of federal criminal law, see 18 U.S.C. § 2441 (Supp. III 1997).

Further support for applying Miranda to custodial interrogations by war crimes investigators might be drawn from Supreme Court decisions involving interrogation by government officials other than police officers. In Mathis v. United States, 391 U.S. 1 (1968), the Court extended the requirement of Miranda warnings to an interview conducted by an IRS agent with a person in custody on the ground that, even though the IRS had not yet begun any criminal investigation, "tax investigations frequently lead to criminal prosecutions," id. at 4. See also id. ("(A]s the investigating revenue agent was compelled to admit, there was always the possibility during his investigation that his work would end up in a criminal prosecution."); cf: id. at 7 (White, J., dissenting) (suggesting that the majority's statement may be "a hint that any in-custody questioning by an employee of the Government must be preceded by warnings if it is within the immensely broad area of investigations which 'frequently lead' to criminal inquiries"). Similarly, in Estelle v. Smith, 451 U.S. 454 (1981), the court applied Miranda to statements made during a court-ordered psychiatric examination when the prosecution later attempted to use those statements against the defendant during the penalty phase of a criminal trial. The fact that the defendant "was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney" was "immaterial." Id. at 467. Once the psychiatrist "went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a post-arrest custodial setting." Id. (emphasis added). [17] Thus, a court might exclude statements made during custodial interrogation by war crimes investigators unless the Miranda requirements are satisfied, on the grounds that such interrogation bears a similarly close nexus to law enforcement.

While we do not believe that this analysis would be correct, it undeniably presents a substantial risk. Accordingly, if a decision has not yet been made concerning where an individual will be prosecuted and if it is deemed essential to ensure that any statements obtained by military investigators may be used in a subsequent trial in an Article III court, we believe that it would be prudent to provide Miranda warnings.

D. Interrogations with Mixed or Dual Purposes

In some cases there may be claims that a given interrogation does not fall neatly into only one of the categories outlined above, or claims that the lines between categories have been blurred because there were different motives behind the questioning. It is possible, for example, that military interrogators primarily seeking information relevant to operations and intelligence may have some interest in determining whether a detainee was engaged in conduct chargeable as a crime or a war crime. As explained below, for the most part we believe that the subjective motives of the interrogator should not alter analysis, which should be guided instead by an objective assessment of the nature of the questioning.

First, and most importantly, under the reasoning outlined above, we have concluded that Miranda should not apply at all to military and intelligence officers' questioning conducted for obtaining military and intelligence information because officers acting in this capacity are not the intended objects of Miranda's rules of conduct. Their subjective motivations in asking any particular questions should not alter this analysis. Nor should the analysis be affected even if it turns out after the fact that an objective assessment of certain particular questions demonstrates that the information sought was relevant solely to establishing the role of the detainee in a past criminal act. Such factors should not matter as long as overall, the primary objective of the questioning is military operations and intelligence information and the interrogators are in good faith pursuing their role in developing such information. Their particular motivations for asking certain questions or the exact nature of the information sought in particular questions should not serve as a basis for later claiming that Miranda warnings should have been supplied in such an interrogation. [18]

Second, we explained above that an extension of the public-safety exception should apply by analogy to interrogations for military and intelligence information, and the Supreme Court has directly addressed the question of dual motives behind questioning in the context of that exception. The court made clear that the "availability of [the public-safety] exception does not depend upon the motivation of the individual officers involved." 467 U.S. at 656. See also id. ("[T]he application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer."). "Whatever the motivation" of those conducting the questioning, the Court concluded that the exception should apply if there were an objective basis for concluding that the questions were "reasonably prompted by a concern for the public safety." Id. In other words, where there is objectively "a situation posing a threat to the public safety," id. at 657, questions reasonably aimed at eliminating that threat can be asked without Miranda warnings. The Court thus drew a distinction between "questions necessary to secure [police officers'] own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect." Id. at 659.

We conclude that, to the extent the public-safety exception is extended by analogy to military and intelligence questioning, the same analysis of dual motives should apply. Thus, as long as there was an objectively reasonable basis to believe that the information sought by military and intelligence officers would reduce the dangers to the lives and safety of American military personnel, allied forces or others, we believe it would not matter if the questioners were also partially motivated by a law-enforcement concern. [19] Questions in the sort of interrogation we have described above seem reasonably related to the former purpose and are certainly not directed solely at the latter.

Finally, a similar dual motive analysis might be applied to argue that when law enforcement personnel -- such as FBI agents --are questioning a detainee, it is only when they ask questions solely for law-enforcement purposes that Miranda is required. Where questions objectively can be said to be related to securing public safety, the Quarles exception should apply. Stated thus generally, we think this is a correct statement of the law, but we nevertheless caution, that it likely does not provide a very useful guide for conduct. As we understand the factual situation, detainees will likely be seized by the military and initially interrogated for operational and intelligence information. Much of this information will be most critical for securing safety within the theater and addressing military threats. The detainee may later be questioned by law enforcement personnel (and others acting at the direction of law enforcement). We think there is a substantial risk in this context that courts will view the change in personnel conducting the interrogations as a proxy for a change in the focus of the questioning and conclude that all such interrogations are for law enforcement purposes. Thus, even if some questions are reasonably related to "public safety" (as broadly conceived in this context), it may be more difficult to establish that the public-safety exception applies. In addition, to receive the benefit of the public-safety exception, it seems likely that law enforcement interrogators would have to ask questions related to public safety first before Mirandizing the detainee and proceeding with further questioning. We think it unlikely that a court would take the record of a broad-ranging interview, much of which was conducted plainly for the purpose of eliciting incriminating evidence, and parse out those questions and answers that are related to public safety to admit them into evidence. The Supreme Court's analysis in Quarles suggested that the exception was designed to permit officers to ask questions immediately as reasonably needed to address safety matters and then to Mirandize a suspect before further questioning. It seems likely that courts will attempt to adhere to that pattern. Because of these concerns, we think the most prudent approach would be to provide Miranda warnings at the outset when the interrogation is being conducted by law enforcement officers building a criminal case. [20]

IV. Subsequent Mirandizing after failure to warn

For purposes of determining whether Miranda warnings should be applied in the more doubtful scenarios considered above, it may be important to understand that if Miranda warnings are not given in an interview where it is later determined they were required, the result will not be that all statements subsequently made by the individual in later interviews will be inadmissible as "fruit of the poisonous tree." To the contrary, as a general matter, a subsequent, properly Mirandized statement may be used against an individual even if that individual has previously given an unwarned statement during questioning when Miranda warnings should have been provided.

The Supreme Court has held that a second, Mirandized statement is admissible so long as the earlier statement, although inadmissible itself under Miranda, was nevertheless voluntarily made. Where the first statement was involuntarily made; the second, Mirandized statement can still be admitted, but only where there has been an adequate break in events between the two statements to ensure that the later one is voluntary. In Oregon v. Elstad, 470 U.S. 298 (1985), the Court explained:

[T]here is no warrant for presuming coercive effect [in a second, Mirandized confession] where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. ... [A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.


Id. at 318. Thus, where the first statement was voluntary (even if unwarned), the Court refused to require the "break in the stream of events" that would have been required had the first statement been coerced. Id. at 310; see also id. at 318 ( declining to require "a passage of time or break in events before a second, fully warned statement can be deemed voluntary"); cf Miranda, 384 U.S. at 496 ("A different case would be presented if an accused [who had previously given an involuntary confession] were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them.").

Elstad, moreover, has not been undermined by Dickerson and the determination that Miranda is a constitutional rule. Although the Elstad opinion relied in part on the view that Miranda was not a constitutional ruling, see, e.g., 410 U.S. at 308, that rationale was not essential to its holding. As the Court noted, "[f]ailure to administer Miranda warnings creates a presumption of compulsion." Elstad, 470 U.S. at 307. Whether the presumption arises out of the Constitution or by judicial creation, it is that compulsion that triggers the Self-Incrimination Clause in the first place. Once warnings are given, however, the presumption of coercion evaporates. In the Court's words,

a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as an 'act of free will.'


Id. at 310-11 (citation omitted). Indeed, to rule otherwise would

effectively immunize a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual's interest in not being compelled to testify against himself. When neither the initial or the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.


Id. at 312 (citations omitted).

Nothing in this logic depends upon whether the presumption arose out of the Fifth Amendment itself or by judicial creation. [21] The touchstone of both the Self-Incrimination Clause and Miranda is compulsion, and as Elstad makes clear, there is no basis for presuming compulsion once an individual has been given Miranda warnings. Nothing in Dickerson alters that result. Rather, the Dickerson court expressly noted that Elstad was consistent with its approach to treating Miranda as a constitutional decision and explained that Elstad "simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment." 530 U .S. at 441. The Court thus made plain that the result in Elstad did not depend on the theory that Miranda was a "non-constitutional decision." Id. Instead, it rested on other differences between all unlawful search and unwarned interrogations, foremost among them being the fact (emphasized in Elstad) that, while an unlawful search may lead inexorably to the discovery of pieces of evidence such that they are the products of the unlawful act, in the context of interviews with a suspect who has "attributes of will, perception, memory and volition," Elstad, 470 U.S. at 309, there can be an intervening act of will when the suspect has been warned of his rights and yet consents to continue making statements to his interrogators.

The courts of appeals that have addressed the issue have agreed that the result in Elstad survives the decision in Dickerson. See United States v. DeSumma, 272 F.3d 176, 180 (3d Cir. 2001) ("We cannot agree with the defendant's reading of Dickerson because the Supreme Court appeared to anticipate and reject it. ... We hold that the fruit of the poisonous tree doctrine does not apply to derivative evidence secured as a result of a voluntary statement obtained before Miranda warnings are issued."); United States v. Orso, 266 F.3d 1030, 1034 n.3 (9th Cir. 2001) ("The distinction was originally premised on the fact that a Miranda violation was not a violation of the Constitution, whereas a Fourth Amendment violation was. ... Nonetheless, Dickerson seems to signal that the distinction set forth in Elstad continues unabated.").

VI. The Sixth Amendment Right to Counsel Does Not Apply Prior to the Initiation of Adversary Judicial Criminal Proceedings

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of counsel for his defence." U.S. Const. Amend. VI. Unless access to counsel must be provided in order to safeguard an independent constitutional right (such as the Fifth Amendment's protection against coerced confession), it is generally necessary that adversary proceedings be formally initiated before a particular phase of a prosecution call be said to "involve critical confrontations of the accused by the prosecution" such as to trigger application of the Sixth Amendment. United States v. Wade, 388 U.S. 218, 224 (1967). "'The Sixth Amendment right [to counsel] ... does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."' Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).

VII. The McDade Act Does Not Apply to Defense Department Interrogators

The McDade Act, 28 U.S.C. § 530B (Supp. IV 1998), reads as follows: § 530B. Ethical standards for attorneys for the Government

(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.

(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.

(c) As used in this section, the term "attorney for the Government" includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under Chapter 40.

Among the "State laws and rules" incorporated by this provision are likely to be state analogues to the American Bar Association's ("ABA") Model Rule of Professional Conduct 4.2 (2001). Rule 4.2 reads as follows:

Rule 4.2 "Communication with Person Represented by Counsel"

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so.


Assuming that a state bar rule similar to Rule 4.2 is among the "State laws and rules" incorporated by section 530B, you have asked specifically whether lawyers on the Judge Advocate Generals' staffs in the Department of Defense are barred from questioning persons detained in Afghanistan or transferred to the custody of the Department of Defense who are represented by counsel. In particular, you have asked whether Defense Department lawyers could question John Walker (Lindh) without the consent of an attorney, Mr. James Brosnahan, claiming to represent him. [22]

Even assuming that a rule similar in substance to Rule 4.2 is incorporated by section 530B, it would not preclude questioning of Mr. Walker by military lawyers even without Mr. Brosnahan's consent for at least two reasons. [23]

First, section 530B does not apply to Department of Defense lawyers. Section 530B by its terms applies only to the conduct of an "attorney for the Government." And subsection 530B(c) expressly defines the term "attorney for the Government" to mean (in addition to an independent counsel and his employees under chapter 40) "any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations." That regulation provides a definition of "government attorney" that largely limits the term to Department of Justice lawyers and does not include lawyers of the Department of Defense. [24] In addition, subsection 530B(b) directs the Attorney General to "make and amend rules of the Department of Justice to assure compliance with this section." That implementing mechanism -- relying on rules for the Department of Justice -- reinforces the conclusion that the provision applies solely to lawyers in that Department.

Second, Rule 4.2 would permit a covered Government attorney to communicate with a represented party even absent the party's counsel's consent if the Government attorney is "authorized by law to do so." We believe that an Executive Order by the President permitting Government attorneys to communicate with persons held by the armed forces in the current conflict -- even if those persons are represented by counsel -- would constitute, in the circumstances of this case, legal authorization within the meaning of such a rule. To assume otherwise would be to read a State ethics rule in a manner that significantly trammeled the President's authority as Commander-in-Chief to take necessary and appropriate measures to acquire information about enemy forces. Such a construction of state law should be avoided since state law cannot stand as an impermissible burden on the exercise of the President's constitutional authority with respect to military and foreign affairs. See United States v. Pink, 315 U.S. 203 (1942).

Finally, we note that even if the Government did in fact violate Rule 4.2 by having military lawyers interrogate represented persons (including Mr. Walker) without consent of counsel, it would not follow that the evidence obtained in that questioning would be inadmissible at trial. The Eleventh Circuit has held that neither section 530B nor the State ethics rules it incorporates requires the suppression in a federal proceeding of evidence obtained through a violation of such rules. "[A] state rule of professional conduct cannot provide an adequate basis for a federal court to suppress evidence that is otherwise admissible. Federal law, not state law, determines the admissibility of evidence in federal court." United States v. Lowery, 166 F.3d 1119, 1124 (11th Cir.), cert. denied, 528 U.S. 889 (1999). Moreover, the court held, section 530B did not require suppression of evidence obtained in violation of such State laws and rules: Congress did not "intend by that enactment to turn over to state supreme courts in every state -- and state legislatures, too, assuming they can also enact codes of professional conduct for attorneys -- the authority to decide that otherwise admissible evidence cannot be used in federal court." Id. at 1125; accord Stern v. United States District Court for the District of Mass., 214 F.3d 4, 20 (1st Cir. 2000).

Please let us know if we can be of further assistance.

Jay S. Bybee
Assistant Attorney General

_______________

Notes:

1. See also Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998) ("Even if it can be shown that a statement was obtained by coercion, there can be no Fifth Amendment violation until that statement is introduced against the defendant in a criminal proceeding."); United States v. Yunis, 859 F.2d 953, 970 (D.C. Cir. 1988) (Mikva, J., concurring specially) ("[T]he focus of the Fifth Amendment protection continues to be the use of compelled, self-incriminatory evidence against the defendant at trial.").

2. See Memorandum for Alberto R. Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Legality of the Use of Military Commissions to Try Terrorists (Nov. 6, 2001).

3. Cf: also Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, at 59 (William S. Hein & Co., Inc. 1997) (1949) (although "interrogations ... were carried out in a thoroughly humane fashion, and no objectionable means were used to elicit information from those who were questioned," "[t]hey were not carried out in the manner of 'pretrial interrogations' as known to American courts, and it would never have occurred to the interrogators, for example, to warn the individual being questioned that anything he said 'might be used against him.'").

4. It appears that in other cases involving similar fact patterns the United States has not contested the application of the Fifth and Sixth Amendments. See, e.g., Yunis, 859 F.2d at 957 ("The parties have stipulated that Yunis, despite his alien status, can claim the protection of the Fifth Amendment to the American Constitution for interrogation that occurred outside the territory of the United States."). Cf also United States v. Yousef, 925 F. Supp. 1063 (S.D.N.Y. 1996) (denying motion to suppress statement made on airplane from Pakistan to United States, because defendant had validly waived Miranda rights); United States v. Noriega, 746 F. Supp. 1506, 1529-32 (S.D. Fla. 1990) (rejecting motion to dismiss indictment on grounds that American invasion of Panama violated Due Process Clause, because alleged violations of rights involved only third parties and not Noriega himself).

5. It bears mention that in the immigration context the Court has developed a doctrine known as the "entry fiction" under which an alien who is detained at the border, even though physically present within the boundaries of the United States, is deemed legally not to have entered the United States. As a result, the alien does not possess constitutional protections that would attach upon entry. See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). It might be argued that an alien whose only presence in the country consists of his transportation here for trial similarly should be treated legally as lacking any presence sufficient to confer rights. Given the analysis outlined in text, we cannot predict that such an argument is likely to prevail. The one circuit court that has addressed the issue has rejected such an approach. See United State, v. Henry, 604 F.2d 908, 914 (5th Cir. 1979).

6. See United States v. Henry, 604 F.2d 908, 914 (5lh Cir. 1979) (stating in dicta that "an alien who is within the territorial jurisdiction of this country, whether it be at the border or in the interior ... is entitled to those protections guaranteed by the Fifth Amendment in criminal proceedings which would include the Miranda warning") (citation omitted); Jean v. Nelson, 727 F.2d 957, 972-73 & n.22 (11th Cir, 1984) (dicta); Bin Laden, 132 F. Supp, 2d at 183 ("Fifth Amendment ... protections seemingly apply with equal vigor to all defendants facing criminal prosecution at the hands of the United States, and without apparent regard to citizenship or community connection").

7. To the extent the Court has referred to Miranda as providing "concrete constitutional guidelines" for courts to follow, it seems clear that what is meant is guidelines for courts to follow in their role of deterring improper conduct by law enforcement through exclusion of evidence.

8. See, e.g., United States v. Nagelberg, 434 F.2d 585, 587 n. 1 (2nd Cir. 1970) ("The Miranda rule has no application ... where the arrest and interrogation were by Canadian officers interested in Canadian narcotic and immigration offenses under their investigation. There is no showing that the statement was coerced or taken in violation of the laws of Canada. There is no claim of 'rubbing pepper in the eyes,' or other shocking conduct. The presence of an American officer should not destroy the usefulness of evidence legally obtained on the ground that methods of interrogation of another country, at least equally civilized, may vary from ours."); United States v. Chavarria, 443 F.2d 904, 905 (9th Cir. 1971) ("so long as the trustworthiness of the confession satisfies legal standards, the fact that the defendant was not given Miranda warnings before questioning by foreign police will not, by itself, render his confession inadmissible"); United States v. Heller, 625 F.2d 594, 599 (5th Cir, 1980) ("statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused," at least where the conduct does not "shock[] the conscience of the American court," American officials did not "participate[] in the foreign search or interrogation," and the foreign agents were not "acting as agents for their American counterparts"); United States v. Covington, 783 F.2d 1052, 1056 (9th Cir. 1985) ("the exclusionary rule is not applicable to interrogations performed by foreign police officers acting in their own country"); United States v. Khan, 993 F.2d 1368, 1376 n.7 (9th Cir, 1993) ("Statements given to police officers of a foreign country are not excludable because Miranda warnings are not given.") (citation omitted).

9. See Neely v. Henkel, 180 U.S. 109, 122-23 (1901) ("[T]he provisions of the Federal Constitution relating to the writ of habeas corpus, bills of attainder, ex post facto laws, trial by jury for crimes, and generally to the fundamental guaranties of life, liberty, and property embodied in that instrument ... have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. ... When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.").

10. Another court of appeals has similarly concluded that, "[w]hen the interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has little or no effect upon the conduct of foreign police." Chavarria, 443 F.2d at 905. Put simply, "applying the Miranda rule to foreign police officers will not affect their conduct, and therefore we decline to so extend the scope of that decision." Commonwealth v. Wallace, 248 N.E.2d 246, 248 (Mass. 1969). See also United States v. Welch, 455 F.2d 211, 212 (2d Cir. 1972) ('[S]ince the Miranda requirements were primarily designed to prevent United States police officers from relying upon improper interrogation techniques and as the requirements have little, if any, deterrent effect upon foreign police officers, the Miranda warnings should not serve as the sine qua non of admissibility."); Yousef, 925 F. Supp. at 1076 ("[T]he purpose of the rule that any statement taken in violation or Miranda is inadmissible is to prevent and deter United States law enforcement personnel from taking involuntary statements that are the result of unduly coercive custodial circumstances.")

11. Similarly, at least some courts tied the exception for foreign police interrogations to the concept that Miranda is a "prophylactic" rule. One court, for example, explained that, because "[w]e have generally held that prophylactic constitutional rules designed to deter police misconduct do not apply to foreign police behavior," the "Miranda rules [have been held] inapplicable to Mexican police interrogations," just as the "Fourth Amendment exclusionary rule does not apply to illegal searches conducted by Mexican authorities acting without substantial involvement by American officials." United States v. Wolf, 813 F.2d 970, 972 n.3 (9th Cir 1987) (citations omitted, emphasis added),

12. Two years after Miranda was decided, Congress enacted a provision now codified at 18 U.S.C. §3501 (1994). By purporting to eliminate the warnings requirements of Miranda and restore voluntariness as the "touchstone of admissibility," section 3501 was intended to override Miranda. Dickerson, 530 U.S. at 436. Dickerson held that Congress could not override Miranda. See id. at 432 ("We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress[.]").

13. See, e.g., Calif. Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1046-47 (9th Cir. 2000) ("a bare violation of Miranda is not enough to sustain a claim under § 1983," although "a failure to comply with Miranda can be viewed as an aggravation of other coercive tactics"); Cooper v. Dupnik, 963 F.2d 1220, 1243-44 (9th Cir. 1992) ("Our holding ... does not create a Fifth Amendment cause of action under § 1983 for conduct that merely violates Miranda safeguards without also trespassing on the actual Constitutional right against self-incrimination that those safeguards are designed to protect.").

14. Whether an interrogation is conducted for criminal law enforcement purposes should not be evaluated based on the subjective motivations of the interrogators. Rather, it should be determined objectively based on the nature of the questions. If the questions are directed at eliciting information that is designed to build a case for a criminal prosecution, we believe that most courts would conclude that Miranda's warning requirements apply.

15. In Bin Laden, which involved suspects in the custody of foreign officials, the court suggested that the following advice of rights could constitutionally be given to aliens interrogated by U.S. law enforcement officials:

Under U.S. law, you have the right to talk to a lawyer to get advice before we ask you any questions and you can have a lawyer with you during questioning. Were we in the United States, if you could not afford a lawyer, one would be appointed for you, if you wished, before any questioning.

Because you are not in our custody and we are not in the United States, we cannot ensure that you will be permitted access to a lawyer or have one appointed for you, before or during any questioning.

However, if you want a lawyer we will ask the foreign authorities to permit access to a lawyer or to appoint one for you. If the foreign authorities agree, then you can talk to that lawyer to get advice before we ask you any questions and you can have that lawyer with you during questioning.

If you want a lawyer, but the foreign authorities do not permit access at this time to a lawyer or will not now appoint one for you, then you still have the right not to speak to us at any time without a lawyer present.

132 F. Supp. 2d at 188 n. 16.


16. This distinction is not a novel one. We recently opined that the Posse Comitatus Act, 18 U.S.C, § 1385 (1994), which generally prohibits the domestic use of the Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States. See Memorandum for Alberto R. Gonzales, Counsel to the President & William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General & Robert J. Delahunty, Special Counsel, Office Of Legal Counsel, Re: Authority for Use of Military Force To Combat Terrorist Activities Within the United States at 15-20 (Oct. 23, 2001).

17. See also United States v. D.F:, 63 F.3d 671, 682-83 (7th Cir. 1995) (Under Mathis, "it is not the particular job title that determines whether the government employee's questioning implicates the Fifth Amendment, but whether the prosecution of the defendant being questioned is among the purposes, definite or contingent, for which the information is elicited. ... [A]lthough a government employee need not be a law enforcement official for his questioning to implicate the strictures of the Fifth Amendment, his questioning must be of a nature that reasonably contemplates the possibility of criminal prosecution.") (footnotes omitted); Battie v. Estelle, 655 F.2d 692, 699 (5th Cir. 1981) ("[T]he particular office that the official who performs the custodial interrogation represents is inconsequential because Miranda was not concerned with the division of responsibility between the various state investigatory agencies but was concerned with official custodial interrogations of an accused and the use of statements obtained from an accused without an attorney in such circumstances to prove the State's case against the accused.").

18. Of course, a different issue would be raised if it appeared that military and intelligence officers had taken it on themselves to develop a criminal investigation in order to exploit the absence of Miranda warnings in their interrogations or were merely acting as the proxies for law enforcement by asking questions at the direction of, for example, FBI agents. Determining where the line would be drawn requiring Miranda in such cases would likely depend on a highly fact-intensive inquiry into the particular circumstances.

19. The Court's holdings in "dual motive" cases under the Fourth Amendment also tend to support our conclusion in this context. As a general matter, the Fourth Amendment case law does not require that a search or seizure have only a single purpose so long as it is otherwise legitimate. Thus, the police may engage in (objectively justified) traffic stops even if their underlying motive may be to investigate other violations as to which no probable cause or even articulable suspicion exists. See Whren v. United States, 517 U.S. 806 ( 1996); see also United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (otherwise valid warrantless boarding of vessel by customs officials not invalidated by facts that state police officer accompanied customs officials and officers were following tip that vessel might be carrying marijuana).

20. Of course, there may be some specialized branches of law enforcement agencies (such as a counter-terrorism unit in the FBI) whose mission is instead to expose and thwart pending terrorist attacks. Their questioning, therefore, may be much more similar to questioning conducted for intelligence and national security objectives, and should be treated the same. Thus, an objective assessment of the type of information being sought in the questioning remains the critical touchstone for assessing the application of Miranda. We note simply that questioning by personnel traditionally associated with law enforcement will likely serve as a rough proxy for most courts in concluding that the questioning was for law-enforcement purposes.

21. See also id. at 308 ("[T]he absence of any coercion or improper tactics undercuts the twin rationales trustworthiness and deterrence [of constitutional violations] -- for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities."); id. at 308-9 ("A living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. ... The living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.") (quotations omitted); id. at 314 ("A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.").

22. On December 4, 2001, Mr. James J. Brosnahan wrote to you, stating "I have been retained by the parents of John Walker Lindh to represent him in any matters that might arise." Letter for William J. Haynes, II, General Counsel, Department of Defense, from James J. Brosnahan, Morrison & Forester, LLP at 1 (Dec. 4, 2001). In that letter, Mr. Brosnahan also stated, "I would ask that no further interrogation of my client occur until I have the opportunity to speak with him. As an American citizen, he has the right to counsel and, under all applicable legal authorities, I ask for the right to speak with my client as soon as possible." id.

23. We note that Rule 4.2 applies only if Mr. Walker is in fact "represented by another lawyer in the matter." In his letter, Mr. Brosnahan stated that he was retained by Mr. Walker's parents to represent their son. We understand, however, that at the time the letter was written Mr. Brosnahan had never spoken with Mr. Walker. This case thus bears a striking resemblance to Moran v. Burbine, 475 U.S. 412 ( 1986). There, the suspect's sister had attempted to retain a lawyer to represent him, but the suspect waived his Miranda rights and confessed before learning of his sister's efforts. The Court found no violation of either Miranda or the Sixth Amendment. See id. at 425 ("Nor are we prepared to adopt a rule requiring that the police inform a suspect of an attorney's efforts to reach him."). The Court additionally noted "the Rhode Island Supreme Court's finding that, as a matter of state law, no attorney-client relationship existed between respondent and [the counsel obtained by his sister]." Id. at 429 n.3 (citing State v. Burbine, 451 A.2d 22, 29 (R.I. 1982)), See also State v. Cline, 405 A.2d 1192, 1199 (R.I. 1979) ("Generally, the relationship of attorney and client arises by reason of agreement between the parties. ... Obviously, such a relationship could not exist between persons who had never met and who in all probability were unaware of each other's existence prior to the meeting in the Providence police station."); cf: United States v. Weinstein, 511 F.2d 622, 628 (2d Cir. 1975) ("[I]n a criminal proceeding any action taken by the court at the behest of a representative appointed without the defendant's knowledge or consent could not bind the fugitive defendant. ... [T]he attorney moving on his behalf must at least have been authorized by the defendant to act as his counsel in the case.").

24. See 28 C.F.R. f; 77.2(a) (2001) ("The phrase attorney for the government means the Attorney General; the Deputy Attorney General; the Solicitor General; the Assistant Attorneys General for, and any attorney employed in the Antitrust Division, Civil Division, Civil Rights Division, Criminal Division, Environment and Natural Resources Division, and Tax Division; the Chief Counsel for the DEA and any attorney employed in that office; the General Counsel of the FBI and any attorney employed in that office or in the (Office of General Counsel) of the FBI; any attorney employed in, or head of, any other legal office in a Department of Justice agency, any United States Attorney; any Assistant United States Attorney; any Special Assistant to the Attorney General or Special Attorney duly appointed pursuant to 28 U.S.C. 515; any Special Assistant United States Attorney duly appointed pursuant to 28 U.S.C. 543 who is authorized to conduct criminal or civil law enforcement investigations or proceedings on behalf of the United States; and any other attorney employed by the Department of Justice who is authorized to conduct criminal or civil law enforcement proceedings on behalf of the United States. The phrase attorney for the government also includes any independent counsel, or employee of such counsel, appointed under chapter 40 of title 28, United States Code. The phrase attorney for the government does not include attorneys employed as investigators or other law enforcement agents by the Department of Justice who are not authorized to represent the United States in criminal or civil law enforcement litigation or to supervise such proceedings.").
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:06 pm

PART 1 OF 3

MEMO __

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

March 13, 2002

Memorandum for William J. Haynes, II
General Counsel, Department of Defense

Re: The President's power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations
You have asked for our Office's views on the laws applicable to the transfer of members of the Taliban militia, al Qaeda, or other terrorist organizations, who have come under the control of the United States armed forces, to other countries. We conclude that the President has plenary constitutional authority, as the Commander in Chief, to transfer such individuals who are captured and held outside the United States to the control of another country. Individuals who are detained within the United States, however, may be subject to a more complicated set of rules established by both treaty and statute.

Part I of this memorandum discusses the President's constitutional authority, supported by two centuries of historical practice, to detain and transfer enemy prisoners captured in wartime. It reviews the two relevant treaties that regulate transfer -- the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 ("GPW"), and the Torture Convention and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1987, 23 I.L.M. 1027 (entered into force June 26, 1987) (the "Torture Convention" or the "Convention"), -- and it explains that these conventions do not apply to the factual situation posed by the transfer of al Qaeda or Taliban prisoners to third countries. As you have requested, we also survey in Part II the domestic legal rules governing extradition, and in Part III the domestic standards that govern removal under the immigration laws.

We conclude that the President has full discretion to transfer al Qaeda and Taliban prisoners captured overseas and detained outside the territorial jurisdiction of the United States to third countries. GPW does not restrict the President's discretion because the President has determined that the al Qaeda or Taliban detainees are not legally entitled to prisoner of war ("POWs") status within the meaning of the Conventions. The Torture Convention poses no obstacle to transfer because the treaty does not apply extraterritorially. As removal applies only to the transfer of individuals already within the territorial jurisdiction of the United States, and as extradition is rarely if ever applied to individuals held abroad, those methods of transfer do not apply to the detainees held either in Afghanistan or at the U.S. Naval Base at Guantanamo Bay, Cuba.

I. THE COMMANDER-IN-CHIEF POWER

Throughout history, army commanders-in chief have exercised the power to "dispose of the liberty" of prisoners captured during military engagements. This power has traditionally included the right to transfer such prisoners to the custody of third parties, including neutral countries and allied belligerents. As a matter of constitutional text and structure, the location of the Commander-in-Chief power in Article 11 of the Constitution makes clear that this function, historically held by military commanders-in chief, lies within the discretion of the executive branch. Our constitutional history and practice confirms this: the President has since the Founding era exercised exclusive and virtually unfettered control over the disposition of enemy soldiers and agents captured in time of war. Indeed, on several occasions throughout American history, the President, either in furtherance of particular diplomatic or military objectives or merely for the sake of convenience, has transferred POWs from the custody and control of the United States to the custody and control of other foreign nations.

Those treaties that purport to govern the transfer of detained individuals generally do not apply in the context of the current war against al Qaeda and other terrorist groups. Even if those treaties were applicable to the present conflict, however, they do not impose significant restrictions on the operation of the President's Commander-in-Chief authority. The GPW imposes some limitations on the transfer of United States-held POWs to other nations. These limitations, however, apply only to individuals who are legally entitled to POW status, and leave the President considerable discretion as to when such transfers are permissible. Further, as this Office has explained elsewhere, the members of non-state terrorist organizations such as al Qaeda are not entitled to POW status as a matter of law because the GPW's protections for POWs apply only to international armed conflicts between state parties. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to at Qaeda and Taliban Detainees at 9-10 (Jan. 22, 2002) ("GPW Memo"). Therefore, there are no GPW constraints on the President's ability to transfer al Qaeda prisoners to third countries. The Torture Convention also imposes limitations on transfer, but those restrictions have no extraterritorial effect and thus are not applicable to prisoners who are captured and detained abroad. [1]

A. Presidential Authority Under The Constitution

This Part discusses the sources of the President's constitutional authority to transfer military detainees to third countries. Throughout United States history, the Constitution's vesting of the Commander-in-Chief and Chief Executive powers in the President has been understood to provide this affirmative legal authority. These grants have long been understood to include the authority to "dispose of the liberty" of enemy soldiers and agents captured in time of war. This view of the President's war powers is supported by the Constitution's text and a comprehensive understanding of its structural allocation of powers, but also by an unbroken chain of historical practice dating back to the Founding era. In tandem, these factors conclusively demonstrate that the Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts.

1. Constitutional text and structure

The text, structure, and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to control and conduct military operations engaged in by the United States. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. Const. art. II, § 2. He is vested broadly with all of "[t]he executive Power" and the duty to execute the laws. Id. art. II, § 1.

By their terms, these provisions vest full control of the military operations of the United States in the President. It has long been the view of this Office that the Commander-in-Chief Clause is a substantive grant of authority to the President, see, e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970), and that the authority conferred includes all those powers not expressly delegated by the Constitution to Congress that have traditionally been exercised by commanders-in chief of armed forces.

Moreover, as the courts have consistently recognized, the President's discretion in exercising the Commander-in-Chief power is complete, and his military decisions are not subject to challenge in the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court faced the question whether the President "in fulfilling his duties as Commander in Chief" could treat the rebellious States as belligerents by instituting a blockade. The Court concluded that this was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted." [2]

The Constitution's textual commitment to the President of control over the minutiae and the grand strategy of military operations alike is reinforced by analysis of the Constitution's structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number... ." The Federalist No. 70, at 472 (Alexander Hamilton) (Jacob E. Cooke ed., 1982 reprint) (1961). The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and make command decisions affecting operations in the field with a speed and energy that is far superior to any other branch. As Hamilton noted, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id. No. 74, at 500 (Alexander Hamilton).

The handling and disposition of individuals captured during military operations requires command-type decisions and the swift exercise of judgment that can only be made by "a single hand." The strength of enemy forces, the morale of our troops, the gathering of intelligence about the dispositions of the enemy, the construction of infrastructure that is crucial to military operations, and the treatment of captured United States servicemen may all be affected by the policies pursued in this arena. Quick, decisive determinations must often be made in the face of the shifting contingencies of military fortunes. [3] This is the essence of executive action.

Second, the constitutional structure requires that any ambiguity in the allocation of a power that is executive in nature must be resolved in favor of the executive branch. As this Office has recently explained, see Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) ("September 25 War Powers Memorandum"), Article II, Section 1 provides that "[t]he executive Power shall be vested in a President of the United States." U.S. Const. art. II, § 1. By contrast, Article I's Vesting Clause gives Congress only the powers "herein granted." Id. art. 1, § 1. This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article 1, Section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution. The unification of executive power in Article II requires that unenumerated powers that can fairly be described as "executive" in nature belong to the President, except where the Constitution expressly vests the power in Congress. For example, as Commander in Chief, the President would ordinarily have plenary power to provide rules for the armed forces, but Article 1, Section 8, Clause 14 excepts this power from the executive by expressly committing it to Congress. U.S. Const. Art. 1, sec. 8, cl. 14 ("The Congress shall have Power... [t]o make Rules for the Government and Regulation of the land and naval Forces"). Even if the Constitution's entrustment of the Commander-in-Chief power to the President did not bestow upon him the authority to make unilateral determinations regarding the disposition of captured enemies, the President would nevertheless enjoy such a power by virtue of the broad sweep of the Vesting Clause. Thus, the power to dispose of the liberty of individuals captured and brought under the control of United States armed forces during military operations remains in the hands of the President alone unless the Constitution specifically commits the power to Congress.

The debates over the Constitution confirm that the Framers understood the Commander- in-Chief power to include all powers related to the conduct of war, with the exception only of those few powers that were expressly carved out and delegated to Congress. During the debates in the Federal Convention, for example, a clause that would have given Congress the power to "make" war was amended to give Congress the power only to "declare" it, in part because it was understood that as the Commander in Chief the President should enjoy the sole authority to conduct warfare. [4] The treatment of captured enemy soldiers is but one of the many facets of the conduct of war, entrusted by the Constitution in plenary fashion to the President by virtue of the Commander-in-Chief Clause. Moreover, it is an area in which the President appears to enjoy exclusive authority, as the power to handle captured enemy soldiers is not reserved by the Constitution in whole or in part to any other branch of the government.

It might be argued that Article I, Section 8, Clause 11, which grants Congress the power to "make Rules concerning Captures on Land and Water," addresses captured enemy soldiers. That provision has never been applied by the courts or by Congress to captured persons, however, and appears always to have been understood as pertaining to captured property only. Article IX of the Articles of Confederation, from which the provision is derived, more clearly indicated that the power extended only to property, stating that Congress would have the power of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated." Articles of Confederation, art. 1X, reprinted in Encyclopedia of the American Constitution app. 2, at 2094 (Leonard W. Levy ed., 1986). The Articles of Confederation provision clearly did not apply to captured enemy soldiers, as persons can neither be "divided" nor "appropriated." Moreover, the term capture, which is used both in the Articles of Confederation and in the Constitution, is defined by international law as "[t]he taking of property by one belligerent from another or from an offending neutral." 1 Bouvier's Law Dictionary 422 (Rawle's 3d rev. 1914) (emphasis added). Thus, in his exhaustive commentaries on the Constitution, Justice Story noted that Article I, Section 8, Clause 11 confers on Congress the power to "authorize the seizure of and condemnation of the property of the enemy within, or without the territory of the United States," yet he made no mention of any authority being vested in Congress over captured persons. Joseph Story, Commentaries on the Constitution of the United States § 1172, at 64 (reprinted 1991) (1833). This contextual understanding of the text of Article I, Section 8, Clause 11, buttressed by the absence in the historical record of any invocations of the clause by Congress or the courts in support of legislation applying to captured persons, leaves no doubt that Congress's power "to make Rules concerning Captures on Land or Water" applies only to captured property.

Article I, Section 8, Clause 12, which vests Congress with the authority to "raise and support Armies," and Clause 14, which vests it with power to "make Rules for the Government and Regulation of the land and naval Forces," might also be thought to confer on Congress the power to promulgate prisoner of war policy. Using its funding power, Congress might attempt to place legislative riders on military appropriations that would seek to require certain treatment of prisoners of war. While this Office has concluded elsewhere that Congress cannot use the appropriations power to interfere with areas of plenary presidential power, see Memorandum for Abner J. Mikva, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Bill to Relocate United States Embassy From Tel Aviv to Jerusalem (May 16, 1995), Congress has not done so here, and so we need not reach that question. Congress also could attempt to use its authority to make rules for regulation of the military to establish standards for prisoner detention and transfer. While we believe that Congress's power on this point is limited to the discipline of U.S. troops, and not to issues such as the rules of engagement and treatment concerning enemy combatants, we have no need to directly address the question because Congress has not enacted any such statute. In fact, Congress's historical silence, as we will explain below, demonstrates that Congress itself has not understood its powers to reach so far into areas of presidential competence.

The historical context in which the Constitution was ratified supplies additional support for our view that the constitutional structure allocates to the President the plenary power to dispose of the liberty of military detainees. In particular, our understanding of the Constitution's allocation of powers between Congress and the President is informed by the British Constitution's allocation of powers between Parliament and the Crown. The Framers had lived under the British Constitution as English colonists, and in drafting their own Constitution they borrowed heavily from the legal and political concepts that formed the foundation principles of British constitutional government. Significant departures from the framework of the British government were explicitly spelled out in the Constitution's text, with the gaps left to be filled in by the Framers' shared understanding of the functional workings of the government under which they had lived. Reference to the British Constitution may shed particular light on those broad questions of power allocation that are not clearly answered by the text of the Constitution alone, for the British Constitution supplied the Framers with their contextual expectations about the manner in which sovereign powers should be allocated in a constitutional system of government.

By the late 18th century, it was well established under the British Constitution that the Crown had absolute authority to dispose as it saw fit of prisoners of war and other detainees. At the Battle of Agincourt in 1415, for example, King Henry V ordered the execution of a large number of French prisoners of war in retaliation for a French attack on part of the English baggage train. [5] Similarly, during the War of the Roses in 1471 it was understood to be the prerogative of King Edward IV to decide which Lancastrian prisoners of war should live and which would die. [6] Although the treatment of prisoners of war generally improved as time went on, the Crown's unilateral control of their handling remained undiminished. When the Spanish Armada was destroyed by a storm off the coast of Scotland in 1588, Queen Elizabeth and her Privy Council dictated every detail of the confinement of captured sailors, including the amount of the allowance to which they were entitled as prisoners of war. [7] The Privy Council also assumed responsibility for determining which captured soldiers were entitled to prisoner of war status, denying the legal classification to those sailors it determined had simply been shipwrecked on their way home to Spain. [8] During this and future periods, Parliament never sought to interfere with the executive's prerogatives regarding the disposition of prisoners of war.

The Crown's control of prisoners of war as a matter incident to military operations was also left untouched by the restructuring of the British Constitution during the civil wars of the mid-17th century. Queen Anne rejected a prisoner of war exchange cartel proposed by King Louis XIV of France in 1703, largely because she was personally insulted that Louis refused to recognize her as the legitimate heir to the English throne. [9] And during the Revolutionary War in America, the British field commanders, who ultimately were controlled by the King, took charge of handling POWs. General Howe, for example, established a Commissary General of Prisoners in 1776 to handle the many soldiers he had captured during his campaigns in New Jersey and New York, and he later determined that many of the soldiers should be held at sea in prison ships. [10] There was no doubt, under the British constitutional system in the 18th Century, that the executive's commander-in-chief power included the sole authority to control POWs. When drafting the Constitution in 1787, the Framers similarly would have understood the President's Commander-in-Chief and Chief Executive powers as encompassing the power to dispose of the liberty of prisoners of war. The Framers made no express allocation in the Constitution of the power to dispose of persons captured during military engagements; their silence on the point signals their intent to leave the power allocated to the Executive, as it was under the British Constitution.

2. Historical practice

Both the Supreme Court and the political branches have often recognized that governmental practice plays a highly significant role in establishing the contours of the constitutional separation of powers: "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'executive Power' vested in the President by § I of Art. II." Youngstown Sheet & Tube Co. V. Saxyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring). Indeed, as the Court has observed, the role of practice in fixing the meaning of the separation of powers is implicit in the Constitution itself: "'the Constitution ... contemplates that practice will integrate the dispersed powers into a workable government."' Mistretta v. United States, 488 U.S. 361, 381 (1989) (citation omitted). The role of practice is heightened in dealing with issues affecting foreign affairs and national security, where "the Court has been particularly willing to rely on the practical statesmanship of the political branches when considering constitutional questions." Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 234 (1994). [11]

Accordingly, we must give great weight to the practice of the President and Congress in determining the scope of the President's authority to detain and transfer prisoners captured in war. In this case, the historical record unequivocally demonstrates that the President has exercised unchallenged and exclusive control over individuals captured during military operations since the time of the Founding. Presidents have established confinement conditions for prisoners of war, negotiated terms and conditions for the exchange of captured soldiers, promulgated rules requiring captured enemy personnel to perform productive labor, and, significantly, transferred prisoners of war to the custody and control of other foreign nations. With respect to each of these functions, Congress has never seriously questioned the President's authority. The history of prisoner of war policy strongly supports reading the Constitution as vesting in the President all of the traditional authority enjoyed by army commanders-in-chief to dispose of the liberty of captured individuals. Because of the novelty of this question and the lack of any direct guidance from the opinions of this Department or decisions by the federal judiciary, we review the relevant history here to demonstrate the depth of support for the conclusion that the President enjoys the unrestricted constitutional power to dispose of prisoners of war.

The Revolutionary War. The absence of a constitutionally recognized chief executive during the revolutionary period and the dominance of the Continental Congress in directing certain aspects of the Continental Army's military operations casts a cloud upon the utility of United States practices during the revolutionary era in discerning constitutional meaning. Nevertheless, the prisoner of war policies practiced by early American military forces indicate that the Founders recognized the power of the sovereign, consistent with contemporary European practices, to transfer prisoners of war to the custody and control of foreign nations. American naval forces that captured British prisoners at sea typically turned the prisoners over to French control. [12] On the home front, General George Washington established the living conditions of captured British soldiers who had fallen under his control. [13] Although not yet in the position of President as created by Article II of the Constitution, General Washington held the title of Commander in Chief of the Continental Army, and neither the Continental Congress (which itself was more of an executive branch than a legislature that could tax or legislate) nor the state assemblies questioned his authority to handle and control prisoners of war. In this respect, General Washington exercised his authority in line with the traditional Anglo-American understanding of the scope of the Commander-in-Chief power.

The Ouasi-War with France. As tensions between the United States and France intensified during the late 1790s, Congress passed a series of statutes pertaining to the disposition of French vessels captured during military engagements defending American shipping. [14] The first such statute merely authorized the President "to seize, take and bring into any port of the United States" French ships found to be "committing depredations" on vessels belonging to citizens of the United States. Act of May 28, 1798, ch. 48, 1 Stat. 561. Three subsequent statutes, however, also included provisions relating to the disposition of the crews and officers of captured enemy ships. [15] See Act of June 28,1798, ch. 62, §4, 1 Stat 574, 575; Act of July 9, 1798, ch. 68, § 8, 1 Star 578. 580; Act of Feb. 28, 1799, ch. 18, 1 Star 624.

The first statute relating to captured sailors provided that "it shall be lawful for the President of the United States, to cause the officers and crews of the vessels so captured... to be confined in any place of safety within the United States... and all marshals and other officers of the United States are hereby required to execute such orders as the President may issue for the said purpose." Act of June 28, 1798, 1 Stat. at 575. It appears that this statute was designed to serve two purposes. First, it was intended to send a clear message to France that her predations would no longer be tolerated, and that her countrymen would suffer the penalty of imprisonment if attacks on American shipping did not cease. [16] Second, the statute's language indicates that it was designed to instruct non-military law-enforcement personnel that it was lawful and indeed required for them to imprison captured Frenchmen on the President's instruction, without any allegation that the Frenchmen had committed domestic crimes. These dual purposes provide ample explanation for the structure of the statute's text, and we do not read the statute as expressing an opinion or intending to imply that the President would not have had the power to imprison the captured sailors in the statute's absence.

The second statute, enacted just two weeks later, provided that "all French persons... who shall be found acting on board any French armed vessel... shall be reported to the collector of the port in which they shall first arrive, and shall be delivered to the custody of the marshal, or of some civil or military officer of the United States... who shall take charge for their safe keeping and support, at the expense of the United States." Act of July 9, 1798, § 8, 1 Stat. at 580. That provision clearly was meant to apply only to Frenchmen captured by private parties, and not to Frenchmen who were captured by armed forces of the United States. Although the first provision of the statute related solely to actions taken by the President, see id. § 1, 1 Stat. at 578, the six intervening statutory sections authorized "private armed ships and vessels of the United States" to capture French marauders, id. § 2, 1 Stat. at 579, and further prescribed rules regulating such captures and the ensuing distribution of captured property, id. §§ 3-7, 1 Stat. at 579-80. The requirement that captured Frenchmen be turned over to a marshal or to "some civil or military officer of the United States" makes sense only as applied to private captures, as Frenchmen captured by United States forces would already have been in the custody of "military officer[s] of the United States." Id. § 8, 1 Stat. at 580. This statute, then, merely directed private citizens to turn captured Frenchmen over to the control of the President, but did not purport in any way to control the actions of the President once the prisoners were in his custody.

The third statute, which was passed half a year later, similarly imposed no requirements on the President. That statute provided that "the President... is authorized to exchange or send away from the United States to the dominion of France, as he may deem proper and expedient, all French citizens that have been or may be captured and brought into the United States... ." Act of Feb. 28, 1799, ch. 18, 1 Stat. 624. Any debates that this provision may have occasioned were not recorded in the Annals of Congress, and it is therefore difficult to place this statute within the context of the events that led to its passage. On its face, however, the statute appears to be designed to encourage the President to use captured Frenchmen as bargaining chips to secure the release of Americans being held prisoner in France. The statute provides no substantive standards, and expressly leaves all prisoner exchanges to the complete discretion of the President. Thus, we do not read the statute to imply that the President would have been without power to effect such exchanges absent congressional authorization.

The one statute from this time period that does appear to require the President to take certain actions was passed only a few days later. That statute provided that if the President received information that a United States citizen who was impressed into serving on a foreign vessel of war was put to death or subjected to corporal punishment after being captured by France, "it shall be lawful for the President of the United States, and he is hereby empowered and required to cause the most rigorous retaliation to be executed on any such citizen of the French Republic, as have been or hereafter may be captured in pursuance of any of the laws of the United States." See Act of March 3, 1799, ch. 45, 1 Stat. 743 (emphasis added). On its face, the statute seems to require the President to take retaliatory measures against captured Frenchmen in his custody, and thus might be read to imply that Congress was asserting that it had the authority to dictate prisoner of war policy. A careful examination of the legislative history of the statute, however, belies such a reading.

The statute was passed in response to a French arrêt ordering the execution of United States citizens found on captured war ships belonging to nations that were at war with France. As originally passed by the Senate and introduced into the House, the measure authorized and required retaliation against any Frenchmen that the President could get his hands on, including Frenchmen who were legally in the United States. The President would indeed have needed congressional authorization to effect such sweeping retaliatory measures. As the United States was not at war with France, and the United States citizens who were threatened by the arrêt were not working on vessels belonging to the United States or its citizens, the President could not have invoked the Commander-in-Chief power to support such unilateral retaliation on his own authority.

Only after it had been passed by the Senate and debated for several days in the House was the retaliation provision narrowed by limiting retaliation to captured Frenchmen who were already in the President's custody. Representatives Gallatin and Smith successfully argued that retaliation should be limited to those Frenchmen who had actually engaged in predation against the United States and been captured, and the amendment was agreed to immediately prior to the passage of the entire bill. 9 Annals of Cong. 3047 (March 3, 1799) (remarks of Mr. Gallatin); Id. at 3051 (March 3, 1799) (remarks of Mr. S. Smith). Although as Commander in Chief the President already enjoyed authority to retaliate against French prisoners who had fallen into his custody, the rest of the provision was not rewritten to conform with the last-minute amendment, and the word "required" remained in the statute as a vestige of its original construction. [17] Had Congress actually purported to require the President to retaliate against prisoners whom he held by virtue of his authority as Commander in Chief, the provision would have constituted an unconstitutional interference with presidential prerogatives. [18]

This contextual reading of the statute also indicates that the statute should not be understood to imply that the President could not have engaged in retaliation against captured enemy agents absent congressional authorization. As originally constructed, the bill authorized retaliation against Frenchmen who were legally within the territory of the United States, and over whom the President would have had no inherent authority to inflict death or corporal punishment. As has been noted, the President would indeed have required congressional authorization to retaliate against such Frenchmen. Congress seems not even to have realized that the amendment to the statute brought the issue of retaliation within the President's power as Commander in Chief, and thus did not think to amend the statute to remove the reference to authorization. Moreover, even if Congress had intentionally included the word "authorized" in the amended provision, absent evidence to the contrary we would read its inclusion as designed to encourage the President to take action, rather than as an expression of an opinion that the President had no inherent authority as Commander in Chief to engage in such retaliation.

The War of 1812. The Congress that presided over the War of 1812 provides the only other historical instance that we have been able to identify of direct congressional involvement in prisoner of war issues. On July 6, 1812, just three weeks after the U.S.'s declaration of war against Britain, the Twelfth Congress passed "An Act for the safe keeping and accommodation of prisoners of war." The Act authorized the President "to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war as he may deem expedient." Act of July 6, 1812, ch. 128, 2 Stat. 777. It also appropriated funds for the purpose of detaining prisoners of war. The statute, however, did not establish any substantive standards governing the disposition of prisoners, and it did not lay any claim to congressional authority in the area. Although the statute spoke in terms of "authoriz[ing]" the President to take action, it at best represented a recognition by Congress of powers that President Madison already enjoyed by virtue of his position as Commander in Chief and provided the funds for the exercise of his responsibilities. Indeed, we read the 1812 Act in the same manner as we have construed the War Powers Resolution, which also purports to "authorize the President to exercise his Commander- in-Chief authority. See, e.g., September 25 War Powers Memorandum. As the President possess the Commander-in-Chief and Executive powers alone, Congress cannot constitutionally restrict or regulate the President's decision to commence hostilities or to direct the military, once engaged. This would include not just battlefield tactics, but also the disposition of captured enemy combatants.

In Brown v. United States, Chief Justice Marshall observed in dicta that Congress's passage of the Act suggested that the President had no inherent authority to hold and detain captured enemy soldiers. 12 U.S. (8 Cranch) 110, 126 (1814) (noting that the Act "affords a strong implication that [the President) did not possess these powers by virtue of the declaration of war"). Brown was exclusively concerned with the President's authority to confiscate enemy property within the United States, however, a subject that is expressly reserved to Congress by Article I, Section 8, Clause 11 of the Constitution. [19] Marshall's offhand reference to the handling of prisoners of war was intended to provide an additional example of a war-related power that the President could not exercise without express statutory authorization. Marshall was unable, however, to cite any constitutional provision comparable to the Captures Clause of Article I, Section 8, Clause 11 that expressly delegates to Congress the power to make rules concerning captured persons. Indeed, there is no such comparable constitutional provision, and Marshall's comment in Brown cannot hold up under the weight of longstanding historical practice to the contrary. Despite the fact that the 1812 Act was repealed by Congress in 1817, see Act of March 3, 1817, ch. 34, 3 Stat. 358, Presidents have continued, with Congress's blessing - usually in the form of supporting appropriations [20] -- to exercise exclusive control over prisoner-of-war policy.

A second prisoner of war issue confronted by the Twelfth Congress indicates that Congress did not believe that the President required legislative authorization before determining the treatment of captured enemy combatants. From the very beginning of the war, the United States protested the treatment that the British accorded captured American soldiers. To induce the British to give them better treatment, a bill was introduced in Coy= in 1813 to vest the President "with [the] power[ of retaliation [against British POWs]." [21] The bill was initially rejected by the House in November of 1812, and the Annals of Congress report that "[t]he objections to the bill were not to the principle of retaliation, but arose from the opinion that such a power already existed, from usage and from the nature of things, and was inseparable from sovereignty." [22] The Act was subsequently reconsidered and enacted in the face of a growing furor over British atrocities, see Act of March 3, 1813, ch. 61, 2 Stat. 829, but documents entered without rebuke or challenge to his authority already instituted several retaliatory measures in order to protect captured American soldiers [23] Congress never asserted that it possessed any constitutional authority to regulate prisoner treatment, nor did it challenge the President's Commander in Chief and executive powers in this area. Rather, Congress merely sought to encourage the President to take a more aggressive approach toward Britain.

The Mexican War. During the Mexican War, the cost of maintaining captured Mexican soldiers was deemed to be too high. President James K. Polk therefore approved a policy in 1846 whereby captured Mexican soldiers would be released on parole and permitted to return to their homes on the condition that they would not reengage in hostilities [24] President Polk hoped that this policy not only would allow the army to prosecute the attack on Mexico without having to devote an undue number of troops to guard duty, but also that the leniency of the policy would curry favor with Mexican citizens and encourage them to put pressure on their government to bring about a quick settlement to the war. President Polk later modified the parole policy in 1847, ordering that captured Mexican officers be detained with an eye toward exchanging them for captured American soldiers being held by the Mexicans. [25] At no time during the course of the war did anyone in Congress challenge the President's constitutional authority to regulate and establish prisoner of war policy on behalf of the United States.

The Civil War. During the Civil War, President Abraham Lincoln was faced with the task of managing thousands of captured Confederate soldiers. President Lincoln created the post of Commissary General of Prisoners in 1861 to direct the disposition of POWs [26] Although the Commissary General's office was originally placed under the jurisdiction of the Quartermaster General, that arrangement was later changed in 1862, and the office thereafter became subject only to the orders of the War Department. [27] As can be seen from this command structure, POWs were throughout the Civil War subject to the exclusive control of the President, exercised under the auspices of the War Department.

President Lincoln's War Department made various uses of the POWs as the war progressed. In July of 1862 the administration entered into an agreement with Confederate authorities setting forth procedures for the exchange of captured soldiers. [28] Later, in 1863 and 1864, the President approved a proposed War Department plan to recruit captured Confederate soldiers who agreed to take an oath of loyalty to serve in the Union army. During the same time period, a handful of Confederate POWs held in Illinois and New York were ordered to perform labor on various minor construction projects, including water works and drainage ditches. [29] Finally, after the surrender of the Confederate army at Appomatox on April 9, 1865, explicit terms and conditions were established for the release of captured soldiers who were still being held in confinement. [30]

A spirited debate in the Senate during January of 1865 regarding a measure urging the President to retaliate against captured Confederate soldiers strongly demonstrates Congress's view that the ultimate authority to decide prisoner of war policy resided in the President by virtue of his constitutional position as Commander in Chief--In the face of mounting evidence that the Confederacy was starving and otherwise mistreating captured Union soldiers, Senator Wade of Ohio moved the adoption of S.R. No. 97, a joint resolution urging President Lincoln to take retaliatory measures. [31] Significantly, rather than speaking in terms of "authorizing" or "commanding" the President to take action, the resolution declared that "in the judgment of Congress, it has become justifiable and necessary that the President should, in order to prevent the continuance and recurrence of such barbarities...resort at once to measures of retaliation." [32]

To emphasize congressional recognition of the President's prerogative in this area, the resolution explicitly stated that "Congress do not, however, intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion." [33] Indeed, during the debates over the resolution, several Senators expressly remarked that the President already had inherent authority to effect retaliatory measures by virtue of his position as the Chief Executive and the Commander in Chief of the armed forces. Senator McDougall forcefully expressed this sentiment in a floor speech, stating that:

we have been for a week talking about a thing that does not belong to the... Senate or House of Representatives, but belongs to the province of the Executive, and undertaking to give advice to the President of the United States, who has charge of this business, and whose particular duty it is to see that he understand it, and that he executes his office in a proper manner ... . I vote against this proposition upon the ground that it has no business either in this Hall or in the other Hall of Congress, but belongs to a department of the Government which has full authority over it. [34]
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:07 pm

PART 2 OF 3

Of further significance, the retaliation statute that Congress passed during the War of 1812 was characterized during the debate as merely expressing Congress's opinion "that [retaliation in the face of outrageous enemy practices] was a duty which was then incumbent upon the Executive as the Commander in Chief of the Army as it is now." [35] In sum, the Civil War Congress firmly recognized that the President possessed inherent authority to dispose of the liberty of prisoners of war by virtue of his constitutional position as Commander in Chief, and consequently made no challenge at any time during the war to his repeated unilateral exercise of that power.

The Spanish-American War. The War Department began its planning for the utilization of POWs captured during the Spanish-American War prior to actually engaging in hostilities. [36] Plans were drafted but ultimately abandoned to use Spanish POWs captured in Santiago de Cuba and Puerto Rico to build roads accessing the interior of the islands for use by the army. [37] Later, during the occupation of the Philippines, the War Department determined how to handle the detention of captured Filipino insurrectionists. It ultimately decided to parole insurrectionists who agreed to take an oath of allegiance to the United States, but deported insurrectionists who refused to take the oath to Guam. [38] As in previous wars, it appears that Congress made no effort to intervene in the President's control over the detention and disposition of prisoners of war.

World War I. Planning for World War I began in July of 1916. It was quickly determined that "the War Department should take charge of prisoners of all classes captured or arrested by any agency of the government in time of war." [39] Within the War Department, responsibility for handling POWs was assigned at first to the office of the Adjutant General, and later to the newly created office of the Provost Marshal General ("PMG"). [40] In March 1918, the War Department promulgated extensive regulations governing the domestic employment of POWs who were shipped to the United States from Europe for internment. [41] The regulations provided that POWs could either be hired out on a case-by-case basis to private parties and corporations or made to perform labor on public works projects such as road building, for which the government would pay them the prevailing private wage. [42] Although POWs were used during World War Ito perform construction and salvage work in Europe, it was the announced policy of the United States throughout the conflict not to transfer any POWs to the control of Allied powers. [43] Nevertheless, the United States did allow the Allies to transfer numerous prisoners of war to its control, particularly during the campaign in France. [44] Again, Congress took no action in regard to prisoners of war that indicates it believed it had any constitutional authority or competence in that area.

The Interwar Years. The War Department engaged in significant prisoner of war planning during the 20-odd year period between the two World Wars. The Provost Marshal General's Department was abolished soon after the end of World War L This left a significant vacuum of responsibility, however, when the United States signed the Geneva Prisoner of War Convention of 1929, thereby assuaging the obligation to establish a domestic War Information Bureau to collect and dispense information about POWs in the event of a war. [45] Responsibility for prisoner of war planning was therefore transferred to the Adjutant General's office and remained there until a new Provost Marshal General was appointed in the summer of 1941. [46] Anticipating the entry of the United States into World War II, the PMG ordered the construction of detention facilities in the southwestern United States beginning in the fall of 1941. The PMG also issued regulations establishing the conditions under which POWs could be employed as a source of wartime labor. [47]

World War II. American prisoner of war policy underwent several significant transformations during the Second World War. Moreover, POW policy varied from front to front depending on the tactical conditions that the army faced and the types of operations in which the army was engaged. Rather than examine the handling of POWs during World War II in minute detail, it is easier to sketch the broad themes that characterized United States policy.

Although the army underwent several reorganizations during the course of the war, the Office of the Provost Marshal General remained at all times directly in charge of handling POWs. [48] The PMG's office was broken up into different sections for operations on the various theaters of the war, each under the ultimate command of the Allied Commander in Chief. [49] At the Commander in Chief's direction, soldiers captured in North Africa and in Europe were extensively employed in support of advancing troops on construction and other projects, freeing Allied units to directly participate in combat on the front lines. [50] This was particularly true of non-fascist Italian POWs, who proved to be more cooperative than their German counterparts and who were formed into regular work companies called "Italian Service Units" or ISUs. [51] POWs who refused to work or were otherwise deemed unfit for employment were kept in central enclosures well away from the front lines, where there was no danger that the Axis armies would attempt to free them. [52]

Many prisoners of war captured in early campaigning were shipped to the United States, there to be either put to work or placed in interment camps. Homefront employment of POWs became sufficiently extensive by the summer of 1943 that the Secretary of War enlisted the aid of another executive agency, the War Manpower Commission, to aid in the effective utilization of POW labor resources and to ensure that POW labor was distributed to areas of pressing need, such as food processing, lumbering, and the railroad industry. [53] The War Department and the War Manpower Commission not only determined which industries POWs could, consistent with the dictates of the Geneva Convention, be employed in, but also established wage scales for the various types of work performed by the POWs. [54] Furthermore, at the close of hostilities the President and the War Department determined the conditions and the timetable under which POWs would be released. [55]

World War II provides the first large-scale example of massive prisoner of war transfers to foreign nations. It is significant that this transfer occurred pursuant to unilateral Presidential order, without the need for congressional approval. During the course of World War II, the United States transferred tens of thousands of prisoners of war to the control of other nations. Shortly after the surrender of the Italian and German forces in Tunisia in May of 1943, the United States transferred 15,000 of its Italian POWs and 5,000 of its German POWs to French control for labor purposes. [56] A similar arrangement was made on the continent after V-E Day in 1945, whereby the United States agreed to transfer 1,300,000 POWs to the control of France, Belgium, and Luxembourg to perform necessary labor on public works projects. [57] 700,000 POWs were ultimately transferred, and it is highly significant that a POW transfer of this scale was made in the sole discretion of the President even after the hostilities in Europe had been concluded.

The most complicated and elaborate transfer schemes employed by the United States during World War U were tailored to the unusual conditions that prevailed in the Middle Eastern theater. In early 1943, the Provost Marshal General's office found itself unprepared to handle a large influx of POWs in this area, and therefore directed that any enemy soldiers who were captured be immediately turned over to British control. [58] By the summer of 1943, however, the American command had established an infrastructure capable of handling POW internment, and the United States and Great Britain agreed that "[e]ach nation, after the initial documentation [of the capture], was to assume responsibility for one-half the total number of prisoners of war captured, after the deduction of any [POWs] captured by a third ally." [59] Later, a new wrinkle was added to this policy when an additional complication arose: The British had an agreement with the Egyptian government allowing them to import prisoners of war into the country, but the United States did not. An arrangement was therefore agreed to whereby American-held POWs were transferred to British control, shipped into Egypt as British POWs, and then restored to the United States. [60]

Although relatively few POWs were captured in the Pacific theatre during World War U, the United States nevertheless made arrangements to turn POWs captured there over to foreign control. Japanese forces that were captured in the "Southwest Pacific Area" were transferred to the control of the Commonwealth of Australia, largely because the United States lacked sufficient rear area facilities and personnel to adequately maintain the POWs itself. [61] Similar complications in the "China-Burma-India Theater" led the United States to turn all POWs captured in that vicinity over to the nearest British headquarters. [62]

The United States also on several occasions during World War II agreed to accept control of prisoners of war captured by its Allies; in August of 1942, for example, the Joint Chiefs of Staff agreed to accept 150,000 POWs from the British because the British were having a difficult time mustering sufficient supplies to sustain them. [63] A similar arrangement was agreed to in November of 1942 whereby 25,000 Italian POWs captured by the British in Kenya were shipped to the United States and maintained there under United States control. [64] Finally, at the outset of the joint American-British invasion of North Africa in 1943 it was agreed that all POWs captured in Northwest Africa by either nation would be considered to be under the control of the United States. [65]

Vietnam. [66] The United States did not have to develop a detailed prisoner of war policy during the Vietnam War, as it agreed early on in the hostilities to transfer all enemy soldiers that it captured in Vietnam to the custody and control of the South Vietnamese government. [67] This arrangement was formalized by the commander of the United States forces in Vietnam and the South Vietnamese Minister of Defense in the Westmoreland-Co Agreement on September 27, 1965. [68] The United States was not satisfied with the efforts made by the South Vietnamese government to exchange POWs for captured American soldiers, however, and therefore seized on an opportunity that materialized in July of 1966 to retain some POWs under its own control when the crewmembers of several North Vietnamese patrol torpedo boats ("PT boats") were captured in the Gulf of Tonkin. [69] The State and Defense Departments worked jointly to establish the conditions under which the POWs were confined and interrogated, and later worked jointly to try to repatriate the prisoners to North Vietnam in exchange for the release of American POWs. [70] The Defense Department ordered that the Geneva Convention guidelines be strictly adhered to with respect to the PT boat prisoners in order to put pressure on North Vietnam to accord captured Americans similarly humane treatment. [71] When it became obvious that no formal exchange agreement would be secured, the State department ordered that all of the POWs be released anyway in the hope that the release might induce North Vietnam to voluntarily reciprocate. [72]

Panama. At the conclusion of Operation Just Cause in Panama in 1990, approximately 4,000 military detainees were transferred to the control of Panamanian authorities. [73] Although the Panamanian detainees were accorded POW treatment as a matter of policy, the Bush administration never reached "any conclusion that the United States was obligated to do so as a matter of law." [74] Thus, Operation Just Cause provides an additional example of the unilateral transfer by the President of military detainees who were not entitled to prisoners of war status to the custody of a foreign nation.

The Gulf War. The United States transferred thousands of captured Iraqi soldiers to the custody of Saudi Arabia during the Gulf War. [75] No statute authorized the President to transfer the detainees, yet Congress did not protest the transfers and took no action indicating that it believed that it had authority under the Constitution to address them.

Conclusion. Since the Founding, no one has seriously questioned that the Constitution's vesting of the Commander-in-Chief and Chief Executive powers in the President constitutes an affirmative grant of authority to the President to "dispose of the liberty" of prisoners of war. Control over prisoners has been considered the prerogative of army commanders in chief throughout American history. With the exception of the statutes passed during the Quasi-War with France and the War of 1812 authorizing the President to take and retaliate against prisoners of war, Congress has never sought to regulate the disposition of POWs or asserted that it has any authority over them. Indeed, even the statutes from the Quasi-War with France and the War of 1812 did not truly "regulate" the disposition of POWs, but rather, without providing binding rules or standards, authorized and provided financial support for vigorous Presidential action. The unbroken historical chain of exclusive Presidential control over enemy soldiers and agents captured in time of war establishes that the President's powers have been understood by the political branches to include the inherent authority to develop and implement United States policy respecting prisoners of war.

Moreover, historical practice clearly demonstrates that the President's inherent authority over prisoners of war includes discretion to transfer custody and control over prisoners of war to other sovereign nations. There is a rich historical tradition of such transfers, beginning as far back as the Revolutionary War and with the most prominent examples occurring in World War II and Vietnam. The admittedly considerable expanse of time during which no such transfers were effected by the United States, which spans the War of 1812, the Mexican War, the Civil War, and the Spanish-American War, is easily explained by the absence of any allies in those wars to which a POW transfer might have been deemed desirable. The advent of alliance warfare during World War I provided the United States with its first opportunity in over a century to engage in prisoner of war transfers, but the military made the policy determination - without ever disclaiming the authority to engage in POW transfers - that it preferred to retain control over all soldiers that it captured. The extensive use of prisoner of war transfers during subsequent conflicts, however, confirms the widespread acceptance of the President's authority and discretion to dispose of the liberty of captured enemy personnel as he sees fit. During this history, neither Congress nor the Judiciary ever challenged or called into question the power of the President to do so.

In sum, the power of the President to set forth and establish all aspects of the prisoner of war policy of the United States, including the power to transfer prisoners of war to the custody and control of other nations, has always been understood as being within the Commander-in- Chief power. Further, it has never been challenged -or called seriously into question by the coordinate branches of the government.

3. Commander-In-Chief Control Of Captured Individuals Not Entitled To POW Status

The President's power as Commander in Chief to dispose of the liberty of individuals captured during military engagements is not limited to those who are entitled to prisoner of war status. During the Civil War, for example, the President negotiated terms for the exchange of civilian prisoners captured by the Union army during military operations. [76] And during World War II, the Commander in Chief of the Allied Expeditionary Force issued regulations governing the disposition of captured individuals not in uniform. Those regulations provided that "unless they can produce evidence to prove that they have the right to treatment as Prisoners of War, [captured personnel not in uniform] will be detained as civilian suspects. Those of FRENCH nationality may be handed over to the FRENCH while those of other nationalities will be retained in custody." [77] Finally, even though Viet Cong captured in South Vietnam during the Vietnam War were indigenous rebels and therefore arguably not entitled to prisoner of war status, the United States nevertheless transferred them to the custody and control of South Vietnam. [78] In sum, historical practice firmly supports the power of the President to transfer and otherwise dispose of the liberty of all individuals captured incident to military operations, and not merely those individuals who may technically be classified as prisoners of war under relevant treaties.

B. Limitations on POW Transfers Imposed by the Geneva Convention

It has long been a recognized international practice for one nation to transfer prisoners of war that it has captured to the custody and control of other nations that are either neutral countries or co-belligerents. [79] Articles drawn up at an international conference in Brussels in 1874 expressly provided for the transfer of prisoners of war to neutral countries during ongoing hostilities, and the 1929 Geneva Convention Relating to Prisoners of War also authorized such transfers under certain circumstances. [80] Indeed, the 1929 Convention expressly distinguished the obligations of the "Capturing Power" from the obligations of the "Detaining Power," implicitly recognizing that the two Powers frequently would not be one and the same. Rather than authorize transfer, these agreements appear to have recognized and codified pre-existing practice under the customary laws of war.

The historical practice of POW transfer is perhaps most explicitly recognized and regulated by the most recent international agreement on the subject, the 1949 GPW. Among other things, the GPW establishes rules governing the transfer of POWs between sovereign nations. Article 12 states that "[p]risoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention." Articles 109 and 110 provide for the accommodation of POWs in neutral countries under certain circumstances. Although these provisions are intended to limit the circumstances under which POWs can be transferred between nations, their inclusion in the Convention establishes that in their absence commanders-in-chief have virtually unfettered discretion to transfer custody of POWs to other nations under international law.

It is exactly this legal rule that applies to al Qaeda and Taliban prisoners. The GPW's protections for POWs apply only in "all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." [81] As this Office has concluded elsewhere, members of al Qaeda have no rights under GPW because al Qaeda, as a non-state terrorist organization, is not a "High Contracting Party" to the Geneva Conventions. See GPW Memo. GPW, therefore, does not apply to the conflict between the United States and al Qaeda and any members of al Qaeda who are captured consequently are not legally entitled to POW status.

On the other hand, both the United States and Afghanistan are High Contracting Parties to the Geneva Conventions. GPW entered into force in the United States on February 2, 1956, and Afghanistan acceded to it on September 26, 1956. [82] As this Office has concluded elsewhere, however, the President has the authority to interpret the GPW to find that members of the Taliban are not legally entitled to GPW status because they do not meet the requirements for POWs set out in GPW Article 4. See GPW Memo. Individuals are not entitled to POW status under GPW unless they meet certain standards, including being a member of an armed force or related militia or volunteer corps that wears uniforms, bears arms openly, and obeys the laws of war. On February 7, 2002, the President exercised this authority and found that none of the Taliban prisoners are entitled to POW status. Consequently, GPW's limitations on the ability to transfer POWs do not apply. GPW establishes no minimum standards regulating the transfer of combatants who do not meet the definition of a POW under Article 4.

Thus, although the transfer provisions of GPW are inapplicable to members of al Qaeda or the Taliban militia, the President could, of course, decide to transfer members of al Qaeda or the Taliban consistent with GPW. If the President were to decide to apply GPW, it would govern POW transfer in the following fashion. Article 12 provides that "[p]risoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention." The GPW thus imposes two initial limitations on transfers of prisoners of war. The first requirement, which holds that the Transferee Power must be a party to the GPW, is both easy to understand and relatively unproblematic, as virtually every nation in the world has signed it. [83] The requirement that the Detaining Power "satisfy itself' that the Transferee Power is "willing" to apply the GPW, however, is considerably more vague. The International Committee of the Red Cross ("ICRC") has expressed the opinion that the Detaining Power can fulfill its obligation only through a prior investigation, which it suggests be conducted under the auspices of the Power assigned to protect the prisoners. See 3 The Geneva Conventions of 12 August 1949: Commentary 136 (Jean S. Pictet ed., ICRC 1960). We do not agree, however, that Article 12 requires that the Detaining Power have actual knowledge of the conditions in which the other power will keep a transferred POW, or that the other power guarantee a certain kind of treatment The phrase "satisfy[y] itself," certainly does not require a prior investigation of the sort contemplated by the ICRC, but instead suggests that whether the receiving nation will meet with GPW is for the transferring country to determine. Further, Article 12 does not state that the Detaining Power must satisfy itself that the transferee nation will honor the strict letter of the GPW in every respect. Rather, a separate sentence of Article 12 indicates that the Detaining Power's responsibility is limited to ascertaining that the transferee nation will not breach the GPW "in any important respect." [84] The ICRC has interpreted that phrase to mean "systematic violations of the Convention," breaches causing "serious prejudice to the prisoners," and "grave breaches of the Convention" as defined by Article 130. Pictet, supra. at 138. Even the ICRC, therefore, acknowledges that the Detaining Power need not satisfy itself that the transferee nation will meet every requirement of GPW in its treatment of POWs.

Once a POW is formally transferred, GPW establishes that the Detaining Power is no longer responsible for the treatment that the POW receives. [85] If, however, the "Protecting Power" - typically the ICRC - complains that the Transferee Nation is not honoring GPW's limitations, the Detaining Power must investigate the Protecting Power's claim, and might even be required to request the return of the prisoner. Like the up-front limitations on POW transfers, however, these back-end GPW requirements are entirely self-enforcing and subject to interpretation, and the manner in which the United States elects to uphold its treaty obligations is left entirely to its own discretion. Your Department would likely have more information that the Department of Justice concerning United States practice, if any, under this provision.

C. Limitations Imposed on the Transfer Of Detainees By the Torture Convention

In addition to GPW, the Torture Convention establishes certain restrictions on the ability of state parties to transfer individuals within its control. The Torture Convention prohibits contracting parties from transferring individuals who are in their custody within their territory to the control of foreign governments that are more likely than not to torture them. Article 3 of the Torture Convention specifies that "[n]o State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." [86] Article 2 provides that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." [87] The United States is a party to the Convention. President Reagan signed the Convention on April 18, 1988, and the Senate consented to it on October 27, 1990.

Two of the Senate's reservations, understandings, and declarations accompanying the Convention are worth mentioning here. First, the United States expressed the understanding that the phrase "substantial grounds for believing that he would be in danger of being subjected to torture" in Article 3 means that "it is more likely than not that he would be tortured." [88] Second, the United States expressly declared that Article 3 of the Convention is not self-executing. [89] As a non-self-executing treaty, the Torture Convention does not, without implementing legislation, provide a private cause of action in federal court for an individual to oppose his expulsion or extradition. See generally Memorandum for Mary B. DeRosa, Legal Adviser, National Security Counsel, from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re: Identifying Self-Executing Treaty Provisions at 1-2 (Dec. 26, 2000); 1 Restatement (Third) of the Foreign Relations Law of the United States § 111 & cmt. h (1987). Thus, the Torture Convention does not itself provide a prisoner with the legal grounds to ask a federal court to block his transfer to another country.

Congress has also passed laws implementing the Torture Convention, however, and such laws generally are domestically enforceable. First, Congress has required all "heads of appropriate agencies" to "prescribe regulations to implement the obligations of the United States under Article 3" of the Convention. Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L No. 105-277, § 2242(b), 112 Stat. 2681, 2681-822 (1998); 18 U.S.C. § 1231 note (1994). This provision does not concern us here, as no regulations that have been promulgated pursuant to it are applicable to military transfers. [90] Congress has also broadly proclaimed, however, that "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States." Id. § 2242(a), 112 Stat. at 2681- 822; 18 U.S.C. § 1231 note. This provision largely tracks the language of the Torture Convention, but it significantly extends the Convention's protections to persons who are not physically present in the United States. Congress expressly referred to this proclamation as a "policy statement," id., indicating that it should not be construed as an actual interpretation of the treaty language or as a provision creating judicially enforceable rights. See Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 454-55 (1988) (holding with respect to statutory language similarly setting forth the "policy of the United States" that "[n]owhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights"); Attakai v. United States, 746 F. Supp 1395, 1405 (D. Arizona 1990) (same). Furthermore, even if it were an interpretation of the Convention, the interpretation would not be binding on the Executive, and indeed it would arguably constitute unconstitutional interference with the President's constitutional authority over treaties. See generally Memorandum for John Bellinger, a Senior Associate Counsel to the President and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001) (the "ABM Suspension Memo").

The non-self-executing nature of the Torture Convention does not answer the question whether the executive branch has a legal obligation to enforce the treaty by refusing to transfer individuals, held in custody in United States territory, to foreign governments under circumstances where it is more likely than not that they will be tortured. [91] But we need not address this latter issue because the Torture Convention has no extraterritorial effect (except in the case of extradition) and, hence, cannot apply to al Qaeda and Taliban prisoners detained outside of United States territory at Guantanamo Bay or in Afghanistan. Although the United States Supreme Court has never interpreted the scope of Article 3, under which the United States cannot "expel," "return," or "extradite" individuals to countries in which it is more likely than not that they will be tortured, it has interpreted identical language elsewhere. As. the Supreme Court has held, a treaty's use of the words "return" and "expel" means that the treaty's requirements apply only to individuals being held within the territory of the United States. See Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) (construing the same words as used in the Conventions Relating to the Status of Refugees). The Court explained that the word expel `refers to the deportation or expulsion of an alien who is already present in the host country." Id. at 180. The word return, on the other hand, which the treaty defines in part by a parenthetical reference to the French word "refouler," "has a legal meaning [that is] narrower than its common meaning." Id. "Refouler" is not a synonym for the English word "return," but rather means to "repulse," "repel," or "drive back." Id. at 180-81. Thus, in the context of international treaties such as the Torture Convention, the word "return" refers to the involuntary removal of individuals who have not been legally admitted into the territory of the host country, but rather have been turned back or detained at the border. [92] Id. at 181-82. "A treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent." Id. at 183. [93]

Given the Supreme Court's interpretation of identical language in the Refugee Convention, it makes no sense to view the Torture Convention as affecting the transfer of prisoners held outside the United States to another country. [94] Our conclusion receives further support from the canon of construction that statutes and treaties are not to be read to have extraterritorial effect unless Congress clearly states its intentions otherwise in the text. See, e.g., Sale, 509 U.S. at 177-87. That presumption plays an important role in ensuring that the political branches have the discretion to manage the Nation's foreign affairs, unless there is a clear intention to regulate such matters by statute or treaty. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-22 (1963). Furthermore, we must interpret statutes and treaties so as to protect the President's constitutional powers from impermissible encroachment and thereby to avoid any potential constitutional problems. Cf. Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 466 (1989). Here, reading the Torture Convention to apply extraterritorially would interfere with the President's powers as Commander in Chief and Chief Executive to direct the operations of the military. We do not read the Torture Convention to have such an effect without a clear statement in the text of the treaty or any implementing legislation.

Further, construing the Torture Convention as applying to the extraterritorial detention of prisoners of war would create an unacceptable conflict with the GPW. As noted earlier, the GPW establishes a legal regime for the treatment of prisoners of war. The highly detailed provisions of GPW are designed to provide a comprehensive set of requirements defining the full set of obligations that signatories undertake with respect to the subject matter covered. In generally prohibiting the extradition, expulsion, or return of individuals under certain conditions, the Torture Convention does not displace the GPW's distinct and specialized body of law in its sphere of operation. To the contrary, the standard rule of construction, applicable to both treaties and statutes, is that the specific governs the general. Thus "where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment" Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (emphasis in original) (internal quotation marks and citations omitted). See also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) ("it is a commonplace of statutory construction that the specific governs the general").

Thus, the United States is free from any constraints imposed by the Torture Convention in deciding whether to transfer detainees that it is holding abroad to third countries.

D. Criminal Penalties for Conspiring to Commit Acts of Torture Abroad

Although the President is free from ex ante constitutional and domestic law constraints on his ability to transfer military detainees held outside the United States to the custody of foreign nations, criminal penalties could apply to such transfers if they were deemed to be part of a conspiracy to commit an act of torture abroad. 18 U.S.C. § 2340A(a) (1994), provides:

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.


18 U.S.C.A. § 2340A(c) (2000), amended by USA Patriot Act, Pub. L. No. 107-56, sec. 811(g), 11S Stat. 272, 381 (2001), provides that the same penalties are applicable to "[a] person who conspires to commit an offense under this section." This law applies to official conduct engaged in by United States military personnel, as 18 U.S.C. § 2340 (1994) defines "torture" to mean "an act committed by a person acting under the color of law," and 18 U.S.C. § 2340A(b)(l) explicitly provides United States courts with jurisdiction where "the alleged offender is a national of the United States."

The scope of the provision is limited by its applicability only to acts of torture committed "outside the United States." Id. § 2340A(a). Because conspiracy liability under section 2340(c) is predicated on an individual's having conspired to perform an act that would have constituted an offense under section 2340(a), section 2340(c) applies only to conspiracies the object of which is the commission of acts of torture abroad. We do not, however, read the statute to exclude from its coverage conspirators who are inside the United States at the time that they enter into an otherwise covered conspiracy. So long as the design of a conspiracy is to commit an act of torture abroad, the locus of the conspirators at the time that they agree to commit the act of torture is irrelevant under the statute.

The statute therefore would provide criminal penalties for any transfer that is found to be part of a conspiracy to commit torture abroad. Under the general federal criminal conspiracy statute, to establish the existence of a criminal conspiracy a prosecutor must demonstrate beyond a reasonable doubt :

(1) that two or more people agreed to pursue an unlawful objective; (2) that the defendant voluntarily agreed to join the conspiracy, and (3) that one or more members of the conspiracy committed an overt act in furtherance of the conspiracy.


United States v. Loe, 262 F.3d 427, 432-33 (5th Cir. 2001) (referring to 18 U.S.C. § 371), cert. denied, No. 01-919, 2002 WL 233060 (Feb. 19, 2002). The Supreme Court has read the first two of these general requirements into other statutes criminalizing "conspiracies" without further defining the term. See, e.g., Salinas v. United States, 522 U.S. 52, 63-65 (1997) (reading the requirements into the RICO statute, 18 U.S.C. § 1962(d)). The Court has ruled, however, that the requirement-of an overt act is a statutory creation that should not be read into statues that do not expressly provide for it. See id. at 64; Fiswick v. United States, 329 U.S. 211, 216 n.4 (1946). It is irrelevant for present purposes whether an overt act is required under the criminal torture statute, however, as the transfer of an individual would almost certainly itself be sufficient to qualify as the requisite overt act.

Thus, to fully shield our personnel from criminal liability, it is important that the United States not enter into an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured. Such an agreement would not have to be explicit to be prosecuted, as an agreement "can instead be inferred from the facts and circumstances of the case." Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975). So long as the United States does not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer, even if the foreign country receiving the detainee does torture him. For criminal liability to attach, the accused must be shown to have intended to effectuate the criminal object of the conspiracy. United States v. U.S. Gypsum Co., 438 U.S. 422, 443 n.20 (1978). Thus, so long as the United States personnel who agree to transfer a detainee do not intend to effectuate the criminal object that is forbidden by the criminal torture statute - here, the torturing of the detainee - they cannot be prosecuted under the statute.

II. DOMESTIC RULES GOVERNING EXTRADITION

Extradition is "the normal process by which individuals charged with or convicted of a crime against the law of one state and found in a second state are returned by the second state to the first for trial or punishment." [95] It is a highly specialized process, the basic characteristics of which are outlined below, and it is accordingly subject to its own particularized set of rules and limitations. Thus, the more generic restrictions that the Geneva Convention places on transfers of prisoners of war do not apply to requests for extradition, and, reciprocally, the specialized rules and requirements that are applicable to the extradition process do not restrict other methods of transfer. Extradition requests typically relate to individuals being held within a nation's territorial jurisdiction, and it is therefore unlikely that the process can be invoked with respect to alien combatants captured in Afghanistan and detained in Guantanamo Bay or Afghanistan. See Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Patrick F. Philbin, Deputy Assistant Attorney General and John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba (Dec. 28, 2001). Although we do not believe that extradition is involved in the extraterritorial transfer of prisoners of war, in the interests of fully informing you of the different legal regimes that might apply in the future we will analyze the applicable procedural requirements and legal restrictions.

A. Extradition Must Be Authorized by Law

In Valentine v. United States ex rel. Neidecker, the Supreme Court ruled that "the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law." 299 U.S. 5, 9 (1936). Although Valentine was decided in the context of an attempt to extradite a citizen of the United States, its requirement that all executive initiatives to surrender individuals to foreign governments must be authorized by law has consistently been applied by the lower courts to attempted extraditions of foreign nationals. [96] See, e.g., Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999), cert. denied, 528 U.S. 1135 (2000).

Valentine establishes that the executive's power to extradite an individual "must be found [in a] statute or treaty [that] confers the power." Valentine, 299 U.S. at 9. Where an extradition treaty is in force between the United States and a country to which the executive wishes to extradite an individual, the treaty will establish most of the terms and requirements for extradition. Some generalizations about extradition procedures can be made, however, on the basis of applicable statutes. First, no person can be surrendered absent "the requisition of the proper authorities of [a] foreign government." 18 U.S.C. § 3184 (Supp. II 1996). Second, the crime that is the subject of the requisition re nest must be listed in the applicable treaty, must not be a crime that is purely political in nature, [97] must have taken place "within the jurisdiction of [the] foreign government," and must be considered a crime under United States law. Id. Additionally, a court reviewing the extradition request must "deem[] the evidence sufficient to sustain the charge" before the individual can be extradited. Id. [98]

These same procedural rules also apply to extradition authorized by statute rather than by treaty. Id. The most significant statutory provision that allows the executive to extradite individuals without regard to the existence of a treaty is 18 U.S.C. § 3181(b) (Supp. II 1996), which, in the interest of comity with foreign nations, authorizes "the surrender of persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries." The predicate crime justifying extradition under section 3181 must be a crime of violence as defined by 18 U.S.C. § 16 (1994) and cannot be political in nature. Section 3181 is relatively narrow in scope. The person to be surrendered cannot be a United States citizen and must have committed a crime of violence against a United States national while outside of United States territory.

B. Domestic Law Limitations on Extradition Based on the Torture Convention

Once all of the applicable procedures have been followed and the statutory or treaty- based requirements have been met, the Secretary of State has virtually absolute discretion whether or not to extradite the individual in question. There are some significant domestic law constraints, however, imposed by statutes and regulations that implement the Torture Convention.

As has been noted, in 1998 Congress passed a statute requiring "the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3" of the Torture Convention, "subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention." Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, § 2242(b), 112 Stat 2681, 2681-822 (1998); 18 U.S.C. § 1231 note (1994). Pursuant to this statute, the State Department has issued a set of regulations designed to implement the Convention. Those regulations declare that "to implement the obligation assumed by the United States pursuant to Article 3 of the Convention, the Department considers the question of whether a person facing extradition from the U.S. 'is more likely than not' to be tortured in the State requesting extradition." [99] 22 C.F.R § 95.2(2)(b) (2001). The regulations go on to specify that "where allegations relating to torture are made or the issue is otherwise brought to the Department's attention, appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary," and further provide that "[b]ased on the resulting analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions." Id. § 95.3. In this way, the State Department regulations preserve the Secretary's discretion and avoid the imposition of any hard-and-fast rules concerning the circumstances under which extradition is permissible.

The failure of the regulations to establish any definable standards does not necessarily give the Secretary carte blanche to do as he pleases, however. By stating that Convention protections are to be extended to individuals whenever it is found that it "is more likely than not" that they will be tortured if they are extradited, 22 C.F.R. § 95.2 at the very least strongly suggests that the Secretary should not surrender individuals to foreign countries that are likely to torture them. But the provision does not create any judicially enforceable rights, and 22 C.F.R. § 95.4 specifies that "[d]ecisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review." But see Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1014 (9th Cir. 2000) (dicta "that the Secretary's duty to implement the [Foreign Affairs Reform & Restructuring] Act is non-discretionary and that the statute does not preclude review, [such that] a fugitive fearing torture may petition for review of the Secretary's decision to surrender him").
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:07 pm

PART 3 OF 3

Applicable statutes provide the Secretary with yet more flexibility. Even if the regulation were construed to forbid the Secretary to hand individuals over to foreign nations whenever it is "more likely than not" that they will be tortured, Pub. L. No. 105-277, § 2242(c) nevertheless provides the Secretary some discretion by minimizing the protections that are accorded to certain classes of aliens. Section 2242(c) excludes from the coverage of all regulations implementing the Convention those aliens that are listed in 18 U.S.C. § 1231 (bX3)(B) "[t]o the maximum extent consistent with the obligations of the United States under the Convention." This exclusion extends to aliens who have been convicted of a serious crime and are deemed a danger to the community, aliens who have committed serious nonpolitical crimes outside of the United States, aliens who are deemed a threat to national security, and aliens who have "ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231 (bX3)(B) (2000), INA § 241(bX3)(B). The fact that the statute requires that the "obligations of the United States under the Convention" be honored means that the statutory exception does not actually provide all that much additional flexibility, as surrendering an individual with knowledge that he will be tortured is clearly forbidden by the Convention. Pub. L. No. 105-277, § 2242(c). In borderline cases, however, it does provide the Secretary with additional discretion that may prove useful.

In conclusion, extradition may in certain cases provide a practical means by which to transfer individuals in our custody to foreign nations. Although such transfers might violate our treaty obligations if extradition is to a country where torture is likely, the applicable domestic law constraints arguably amount to little more than precatory policy statements. Moreover, judicial interference in an extradition proceeding is extremely unlikely, as the Convention is not self-executing, see Akhtar v. Reno, 123 F. Supp. 2d 191, 196 (S.D.N.Y. 2000), judicial review of statutory Convention-based claims is expressly limited by Pub. L. No. 105-277, § 2242(d) and 22 C.F.R. § 95.4, and the traditional "rule of non-inquiry" prohibits courts from taking into account the treatment that an individual is likely to receive in a foreign nation once transferred in rendering rulings concerning extradition. See generally Jacques Semmelman, Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings, 76 Cornell L. Rev. 1198 (1991).

III. DOMESTIC RULES GOVERNING REMOVAL

Removal rules govern only aliens who are being held within the territory of the United States. Thus, the following discussion is not applicable to the Taliban and al Qaeda detainees presently being held at Guantanamo Bay. Nevertheless, we provide an analysis of the removal rules so that you will know the full range of options in the event that detainees are held within the United States in the future.

Normal removal procedures- those that apply to the vast majority of aliens who are illegally in the United States - strictly limit the places to which an alien can legally be removed. There are special procedures, however, that govern the removal of alien terrorists and other aliens posing a threat to our national security, and those procedures accord the Attorney General a great deal of flexibility in determining the place to which an alien should be removed. Nonetheless, the Torture Convention prohibits the removal of an alien to a country where it is "more likely than not" that the alien will be tortured. Moreover, statutes implementing the Convention establish that it is "the policy of the United States" not to remove aliens to countries in which it is likely that they will be tortured, and implementing regulations promulgated by the Department of Justice flatly prohibit removal under such circumstances. Thus, the vast discretion that is effectively afforded the Attorney General by the alien terrorist removal procedures can be employed to remove an alien only to a country where it is unlikely that he will be tortured.

A. Normal Removal Procedures

1. Designated Place of Removal Under the Normal Removal procedures


Under the statutory guidelines, the place to which an alien is to be removed depends on whether the alien was ever lawfully admitted to the United States. Aliens who are stopped upon their arrival at the United States "shall be removed to the country in which the alien boarded the vessel or aircraft on which the alien arrived in the United States." 8 U.S.C. § 1231(b)(I)(A), INA § 241(b)(1)(A). If the alien arrived from a foreign territory contiguous to the United States or an island adjacent to the United States but is not a citizen of that territory or island, the alien shall be removed "to the country in which the alien boarded the vessel that transported the alien to the territory or island." Id. § 1231 (b)(1)(B), INA § 241 (b)(1)(B). If, and only if, the designated country is unwilling to accept the alien, the alien may be removed to a country of which the alien is a citizen, subject, or national, the country in which the alien was born, or a country in which the alien has a residence. Id. § 1231(b)(1)(C), INA 241(b)(1)(c). If each of these three options is found to be "impracticable, inadvisable, or impossible," then the alien may be removed to any country that is willing to accept him. Id.

All other aliens who are subject to removal under the normal removal procedures are generally allowed to designate the country to which they wish to be relocated. Id. § 1231 (b)(2)(A), INA § 241 (b)(2)(A). The Attorney General may ignore that designation, however, if he "decides that removing the alien to the country is prejudicial to the United States." Id. § 1231 (b)(2)(C)(iv), INA § 241(b)(2)(C)(iv). The Attorney General must then remove the alien "to a country of which the alien is a subject, national, or citizen" unless the governments of all of the applicable countries either refuse to accept the alien or fail to send word of their acceptance or non-acceptance of the alien to the Attorney General within 30 days. Id. § 123 1 (b)(2)(D), INA § 241(b)(2)(D). In the event that an alien is not removed pursuant to any of these provisions, the Attorney General is granted a range of options as to where he may send the alien, including - if and only if it is determined that all of the other available options are "impracticable, inadvisable, or impossible... another country whose government will accept the alien into that country." Id. § 1231 (b)(2)(E)(vii), INA § 241 (b)(2)(E)(vii).

Special provisions govern the removal of aliens when the United States is at war. Upon a fording that a war has rendered it "inadvisable, inconvenient, or impossible" to utilize normal removal procedures, the Attorney General has two options. If the government of the country of which the alien is a citizen is in exile, the alien may be removed to the country that is hosting the exiled government. Id. § 1231 (b)(2)(F), INA § 241(b)(2)(F). If, on the other hand, the government of which the alien is a citizen is not in exile, the alien may be removed to "a country that is very near the country of which the alien is a citizen or subject, or, with the consent of the government of the country of which the alien is a citizen or subject, to another country." Id. In certain cases, the wartime removal procedures could prove to be quite useful. For example, an alien who is a citizen of a Middle Eastern country could probably be removed to nearby Egypt, while a citizen of Afghanistan could be removed to nearby Russia or India. As there are no court decisions that address the scope of these special provisions outside of the context of formal, congressionally declared wars however, it is possible that the courts could deny them any effect during times of more limited military engagements.

In conclusion, the normal removal procedures allow for transfer an alien to a country of the Attorney General's choice only in certain circumstances. Aliens who were never legally admitted to the United States are typically returned to the country from whence they came, while aliens who were lawfully admitted to the United States are typically permitted to designate a country of their choice to which they wish to be removed. In those instances in which this first removal option proves to be unavailable, the statutes accord what amounts to a right of first refusal to the country in which the alien resides and to the country of the alien's citizenship to be the place to which the alien will be removed. Only when all of the statutorily designated countries are either unwilling to accept the alien or are deemed prejudicial to the United States by the Attorney General does authority devolve to the Attorney General to designate the country to which the alien will be removed. Simply put, this convoluted process does not provide a reliable mechanism for transferring aliens to particular countries of the Attorney General's choosing.

2. Domestic Law Limitations on Place of Removal

There are several statutory and regulatory constraints limiting the authority of the Attorney General to remove aliens to foreign nations in which it is likely that they will be tortured or otherwise persecuted. The removal statute provides that "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 123 1 (b)(3)(A), INA § 241(b)(3)(a). This provision should not present an obstacle to removing an alien terrorist to a country of the Attorney General's choice, however. First, any persecution that a terrorist might suffer would likely be attributable not to his "race, religion, nationality, membership in a particular social group, or political opinion," but to his participation in an illegal terrorism campaign. Id. Second, the provision is expressly made inapplicable to an alien if, among other things, the alien "ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion." Id. § 123 l (b)(3)(B), INA § 241(b)(3)(B). This provision could cover virtually every alien terrorist who is apprehended in the United States, as it is the express goal of al Qaeda terrorists to persecute United States citizens because of their nationality. Even where that exception is inapplicable, however, an exemption is also provided where "there are reasonable grounds to believe that the alien is a danger to the security of the United States." Id. This second provision provides the Attorney General with a flexible catch-all that should cover virtually any alien who is involved in planning terrorist activities.

As has been noted, Congress imposed additional domestic law restrictions on removal when it implemented the Torture Convention. See Pub. L. No. 105-277, § 2242, 8 U.S.C. § 1231 note. Congress further required that all "appropriate agencies" promulgate regulations designed to implement the Convention. Id. § 2242(b). The statute does, however, exclude certain aliens from the protection of domestic regulations - those aliens that are listed in 8 U.S.C. § 1231(b)(3)(B), which, as has been noted, should encompass any alien who is suspected of having engaged in terrorism. Id. § 2242(c). This exclusion is limited in effect, however, stripping the listed aliens of regulatory protections only "[t]o the maximum extent consistent with the obligations of the United States under the Convention, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention." Id. Given the broad sweep of the Convention and the very limited scope of the Senate's reservations, understandings, and declarations, this exclusion is not particularly broad.

The regulations found at 8 C.F.R. § 208.16-.18 (2001) generally implement the Convention, establishing procedures whereby aliens can seek to have their removal either deferred or withheld on the grounds that it is "more likely than not" that they will be tortured in the country to which they were ordered removed. No statute or regulation specifies precisely how an alien is supposed to initiate an application for withholding or deferral of removal, but it is apparent from the structure of 8 C.F.R. Part 208, entitled "Procedures for Asylum and Withholding of Removal," that aliens must use the same procedures that apply to applications for asylum. Upon filing, the burden of proof is on the alien applicant "to establish [before an immigration judge] that it is more Likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16 (c)(2). "If the immigration judge determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Torture Convention." Id. § 208.16(4). The alien's removal must then be withheld unless the alien falls within the categories listed in 8 U.S.C. § 123 1 (b)(3)(B), which are set forth above.

If an alien does fall into one of the categories listed in 8 U.S.C. § 1231(b)(3)(B) - as it can be expected that most alien terrorists will - the alien is to be granted a deferral of removal pursuant to 8 C.F.R. § 208.17 instead of a withholding of removal pursuant to § 208.16. A deferral of removal confers no lawful immigration status upon the alien and does not require that the alien be released from custody. Moreover, a deferral can be terminated whenever an immigration judge determines that circumstances have changed such that it is no longer "more likely than not" that the alien will be tortured in the country to which he has been ordered removed. Id. § 208.17 (b). The Attorney General may also himself terminate an order withholding or deferring removal "[i]f the Secretary of State forwards assurances.. .to the Attorney General" that "the Secretary has obtained from the government of a specific country assurances that an alien would not be tortured there if the alien were removed to that country." Id. § 208.18(c). The Attorney General's termination of a withholding or deferral order prevents any further consideration of the alien's claim for protection under the Convention "by an immigration judge, the Board of Immigration Appeals, or an asylum officer." Id. § 208.18(c)(3).

None of the protections and procedures discussed in this section apply to unadmitted aliens who are stopped upon their arrival in the United States and are determined to be terrorists, threats to national security, or otherwise harmful to the foreign policy interests of the United States. See 8 U.S.C. § 1225 (c) (2000), INA § 235(c); 8 C.F.R. § 208.18(d). Such aliens are instead afforded Convention protections according to the procedures applicable to alien terrorists, which are outlined below.

B. Special Removal Procedures for Alien Terrorists

1. Securing an Order of Removal


Special statutory procedures govern the removal of alien terrorists. These procedures provide the Attorney General with the best and most flexible option for removing alien terrorists to a country of his choice. To secure such a removal order, the Department of Justice must prove to an immigration judge (1) that the targeted alien is a terrorist and (2) that removal of the alien under the normal procedures "would pose a risk to the national security of the United States." 8 U.S.C. § 1533(a)(l)(D) (2000), INA § 503(a)(l)(D). The statute defines an alien terrorist as an alien "who has engaged, is engaged, or at any time after admission engages in any terrorist activity," Id. § 1227(a)(4)(B), INA § 237(a)(4)(B), including hijacking, sabotage, hostage taking, assassination, violent attacks upon internationally protected persons, and the use of explosives, firearms, or biological and chemical agents with intent to endanger safety or property (other than for purely personal monetary gain). Id. § 1182(a)(3)(B), INA § 212(a)(3)(B). The government is permitted to use classified information to make its case against an alien, in which case the information is reviewed by the judge ex parte and in camera. The hearing is otherwise open to the public, however, and the alien must be afforded the right to counsel and the right to introduce evidence. Id. § 1534, INA § 504. A trial judge's order of removal can be appealed to the United States Court of Appeals for the District of Columbia Circuit. Id. § 1535, INA § 505.

The statute provides that alien terrorists who are ordered removed "shall be [removed] to any country which the alien shall designate." Id. § 1537(bX2XA), INA § 507(b)(2XA). The alien need not be removed to the country selected by the alien, however, "if the Attorney General, in consultation with the Secretary of State, determines that removal of the alien to the country so designated would impair a treaty obligation or adversely affect United States foreign policy." Id. § 1537(bX2)(B), INA § 507(b)(2XB). If the alien is not removed to the country of his designation, "the Attorney General shall cause the alien to be removed to any country willing to receive such alien." Id. Thus, so long as a legitimate foreign policy interest supports the Attorney General's refusal to remove an alien to the country of his designation, the alien can legally be removed to any country of the Attorney General's choice.

2. Convention Limitations on Removal

The Department of Justice has promulgated two sets of regulations respecting the removal of alien terrorists to implement the Torture Convention. The regulations establish that alien terrorists are not entitled to apply for withholding or deferral of removal under the Torture Convention. Id. § 1534 (k); 8 C.F.R. § 208.18 (d). Instead, "the [Immigration and Nationalization] Service will assess the applicability of Article 3 through the removal process to ensure that a removal order will not be executed under circumstances that would violate the obligations of the United States under Article 3." 8 C.F.R. § 208.18(d). The regulations further provide that "[a) removal order under [8 U.S.C. 1531-37] shall not be executed in circumstances that would violate Article 3 of the United Nations Torture Convention.. .as implemented by [Pub. L. No. 105-277 § 2242, 8 U.S.C. § 1231 note]. Convention claims by aliens subject to [such) removal... shall be determined by the Attorney General, in consultation with the Secretary of State." 8 C.F.R. § 507.1 (2001). Although the regulations leave the ultimate determination regarding the protection of alien terrorists to the discretion of the Attorney General, that discretion is constrained by the regulations' requirement that the Attorney General ensure that no removal would violate Article 3 of the Convention.

Conclusion

We conclude that as Commander in Chief and Chief Executive, the President has the plenary constitutional power to detain and transfer prisoners captured in war. We also conclude that neither the GPW nor the Torture Convention restrict the President's legal authority to transfer prisoners captured in the Afghanistan conflict to third countries. Although the GPW places conditions on the transfer of POWs, neither al Qaeda nor Taliban prisoners are legally entitled to POW status, and hence there are no GPW conditions placed on their transfer. While the Torture Convention arguably might govern transfer of these prisoners, it does not apply extraterritorially. If detainees in the future are held within the territory of the United States, however, a more complex set of rules would apply.

Please let us know if we can provide any further assistance.

Jay S. Bybee

_______________

Notes:

1. To the extent that these treaties would cabin presidential freedom to transfer detainees, they could not constrain his constitutional authority. A transfer that was inconsistent with a treaty would amount to a suspension of the treaty. See generally Memorandum for John Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council, from John C. Yon, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001) (the "ABM Suspension Memo")

2. Id. (emphasis added). See also Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) ("Certainly it is not the function of the Judiciary to entertain private litigation - even by a citizen -which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region."); United States v. Chemical Foundation, Inc., 272 U.S. 1, 12 (1926) ("It was peculiarly within the province of the Commander-in-Chief to know the facts and to determine what disposition should be made of enemy properties in order effectively to carry on the war.").

3. For historical examples of the impact that United States prisoner of war policy has had in all of these areas, see Lt. Col. George G. Lewis & Capt. John Mewha, History of Prisoner of War Utilisation by the United States Army 1776-1945, Dep't. of the Army Pamphlet No. 20-213 (1955), as well as Section I.A.2. of this memorandum.

4. 2 The Records of the Federal Convention of 1787, at 318-19 (Max Fanand ed., rev. ed. 1966) (1911).

5. Encyclopedia of Prisoners of War and Internment 4 (Jonathan F. Vance ed., 2000).

6. Id. at 315.

7. Paula Martin, Spanish Armada Prisoners: The Story of the Nuesta Senour del Rosurio and Her Crew at 4446, 48 (1988) (quoting a Privy Council order stating that it was "her Majesty's pleasure that the Spanish prisoners for their relief should be allowed to every each of them 4d per diem").

8. Id. at 52.

9. Mark A. Thompson, William III and Louis XIV- Essays 1680-1720, at 192 (R. Hatton & J.S. Bromley eds., 1968).

10. Encyclopedia of Prisoners of War, supra note 8, at 6-7.

11. As the Supreme Court has noted, "the decisions of the Court in th[e] area [of foreign affairs] have been rare, episodic, and afford little precedential value for subsequent cases." Dames & Moore v. Regan, 453 U.S. 654, 661 (1981). In particular, the difficulty the courts experience in addressing "the broad range of vitally important day-to- day questions regularly decided by Congress or the Executive" with respect to foreign affairs and national security makes the judiciary "acutely aware of the necessity to rest [judicial] decision[s] on the narrowest possible ground capable of deciding the case." Id. at 661, 660. Historical practice and the ongoing tradition of executive branch constitutional interpretation therefore play an especially important role in this area. "The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight" McPherson v. Blacker, 146 U.S. 1, 27 (1892).

12. Lewis & Mewha, supra note 3, at 5.

13. See Letter for British General Gage from General George Washington (Aug. 11, 1775), reprinted in Cong. Globe,, 38th Cong., 2d Sess. (1865).

14. Congress is expressly granted the power to make rules for the disposition of captured enemy property by Article I, Section 8, Clause 11 of the Constitution. U.S. Const. art 1, sec. 8, el. 11 ("The Congress shall have Power [to]... make Rules concerning Captures on Land and Water").

15. It is unclear which of its enumerated powers Congress was invoking to pass these statutes. One arguable source of authority would have been Congress's power to "regulate Commerce with foreign Nations," U.S. Const. art. 1, § 8. cl. 3, which might be construed to allow Congress to take measures to protect foreign commerce. The foreign commerce power was never mentioned during the debates in Congress, however, and at any rate it could not by itself supply the whole answer, as the authorization of prisoner exchanges, for example, had anything to do with the protection of foreign commerce. Another arguable source of authority would have been Congress' power to "define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." Id. at cl. 10. Indeed, a: least one Congressman noted in a floor speech that the statutes were "intended to defend our commerce, according to the law of nations." 8 Annals of Cong. 1826 (May 26, 1798) (remarks of Mr. Macon). Again, however, that clause cannot supply the whole answer, as the authorization of prisoner exchanges, for example, does not have the effect of punishing offenses against the law of nations. Congress instead seems to have assumed that it had inherent authority to legislate on the subject because foreign affairs issues are committed to the federal government by the Constitution, and Congress is the federal government's sole legislative organ. As one Congressman opined, "[h]e had no doubt, that when one nation infringes the rights of another, it had a right to take measures against it; but this right was lodged in the sovereignty of the nation, and as that, in this county, does not lie wholly in the President, but in Congress, the President has no power to act in the case." Id. at 1828 (remarks of Mr. Bayard). This argument is inconsistent with our understanding of Article I, Section 1, however, which vests Congress only with those powers "herein granted." See U.S. cont. art 1, § 1. See also September 25 War Powers Memorandum. It is the President, and not Congress, who is accorded responsibility by the Constitution for the conduct of foreign affairs. Id. Thus, we believe that Congress may have acted outside the scope of its constitutionally granted powers in passing at least some of these statutes.

16. See 8 Annals of Cong. at 1819 (remarks of Mr. Shepard) ("It is time, said he, to tell the French nation, 'we will not submit any longer.'").

17. It is also worthy of note that even prior to the amending of the statute, most members of Congress seemed to accept that the President would not be legally bound to engage in retaliation. See, e.g., 9 Annals of Cong. at 3046 ("knowing... the character of the President... he did not believe a single case would ever happen in which it would be exercised") (remarks of Mr. Gallatin); id. at 3049 ("the President... would not suffer the law, if passed, to be carried into effect") (remarks of Mr. Dana).

18. See. e.g., our discussion of measures pertaining to retaliation debated by Congress during the Civil War, infra.

19. See supra note 15.

20. See e.g., Act of July 5, 1862, ch. 133, § 1, 12 Stat. 505, 507; Act of Feb. 9, 1863, ch. 25, § 1, 12 Star. 642, 644; Act of June 15, 1864, ch. 124, § 1, 13 Stat. 126, 128; Act of March 3, 1865, ch. 81, § 1, 13 Star. 495, 496.

21. Lewis & Mewha, supra note 3, at 22-23.

22. 25 Annals of Cong. 154, 1144 (1812-13).

23. 25 Annals of Cong. at 1239 (letter from Major General Pinckney to the Secretary of War) (Nov. 4, 1812)C"1nformation having been given...that six American seamen...had been sent to Jamaica to be tried as British subjects, for treason, he called upon the marshal to retain double that number of British seamen as hostages."). See also 27 Annals of Cong. 2098-2238 (1813-14).

24. Lewis & Mewha, supra note 15, at 25-26.

25. Id. at 26.

26. Id. at 28.

27. Id. at 29.

28. Id. at 29-30.

29. Id. at 39.

30. Id. at 41.

31. Cong. Globe, supra note 18, at 307.

32. Id. at 363 (remarks of Senator Wade) (emphasis added).

33. Id. at 364.

34. Id. at 522. See also id. at 408 (remarks of Senator Brown) (remarking that "the doctrine of retaliation has [already) been recognized and has been applied by the Government of the United States and its officers in the present war" and that the wording of the resolution "shows that ...the President, as the Executive Officer of the Government, charged with its execution, was not to be understood as being limited in his action by any suggestion which might be contained in the body of that resolution"); id. at 413 (remarks of Senator Davis) (noting that the resolution merely constituted a request for the President to take action); id. at 427 (remarks of Senator Davis) ("This law may be taken up by the President of the United States without any additional legislation upon the part of Congress just as it exists, and it may be executed by him; and as some of the members of the Senate have maintained,... there is no reason whatever for the interposition of Congress in this matter at this time. So far as the law of retaliation exists, so far as it maybe legitimately executed, it is to be decided by the law of nations, and the President of the United States, without any ancillary legislation on the part of Congress, may execute that law just as he would and to the same extent and rigor with which he might execute it backed by any legislation which Congress would adopt."); id. at 429 (remarks of Senator Howard) (assuming the authority of the President to dispose of the liberty of prisoners of war in stating that "I shall presume in this discussion that the executive branch of the Government have at least tried faithfully to do their duty to the country, and that if they have failed in bringing about this exchange and the liberation of our prisoners in rebel hands, they have innocently failed").

35. Id. at 431 (remarks of Senator Howard).

36. Lewis & Mewha, supra note 3, at 44.

37. Id.

38. Id. at 46.

39. Id. at 50.

40. Id. at 50, 59.

41. Id. at 56.

42. Id. at 56.

43. Id. at 52, 63.

44. Id. at 52-53, 59.

45. Id. at 67-70.

46. Id. at 72.

47. Id. at 73.

48. Id. at 80-81, 175.

49. Id. at 176, 207.

50. Id. at 94-95, 176-77.

51. Id. at 95, 177.

52. Id. at 221.

53. Id. at 106, 119.

54. Id. at 120-23.

55. Id. at 204, 241-43.

56. Id. at 177.

57. Id. at 241.

58. Id. at 201.

59. Id.

60. Id. at 202-03.

61. Id. at 247.

62. Id. at 260.

63. Id. at 83.

64. Id. at 88.

65. Id. at 90 n.43.

66. We do not here discuss the disposition of POWs during the Korean War because POW policy was established by the United Nations Command and not by the United States.

67. See Major General George S. Prugh, Law at War: Vietnam 1964-1973, at 62-65 (Dep't. of the Army 1975).

68. See Vernon E. Davis, The Long Road Home: U.S. Prisoner of War Policy and Planning in Southeast Asia 94 (2000).

69. See id. at 94.

70. Id.

71. Id. at 94-95.

72. Id. at 95.

73. See F. Borch, Judge Advocates in Combat 105 (2001).

74. See Letter for Richard L. Thornburg, Attorney General, from Abraham D. Sofaer, Legal Adviser, Department of State (January 31, 1990).

75. Conduct of the Persian Gulf War: Department of Defense Final Report to Congress 520 (1992).

76. Lewis & Mewha, supra note 3, at 29.

77. Id. at 215.

78. See Prugh, supra note 67, at 62.

79. See William E.S. Flory, Prisoners of War: A Study in the Development of International Law 45 (1942).

80. See The American National Red Cross, Historical Background of International Agreement Relating to Prisoners of War 56-59 (1943).

81. See GPW, Article 2.

82. See 30 ILM 397 (1991).

83. 30 ILM 397.

84. GPW, Article 12 (emphasis added).

85. GPW, Article 12.

86. 23 I.L.M. at 1028.

87. Id.

88. 136 Cong. Rec. 36,193 (1990).

89. Id.

90. As is discussed below, the Torture Convention does not apply extraterritorially. Thus, the Department of Defense was not required to promulgate regulations with respect to military transfers.

91. Torture Convention, 23 LLM at 1028.

92. Thus, the word "return" as used in the Convention does not apply to individuals who are apprehended or turned back while on the high seas. See Sale, 509 U.S. at 181-83.

93. In the present context, we need not examine whether the Torture Convention's prohibition of extradition applies extra territorially.

94. To the extent that it might be argued that customary international law prohibits the transfer of individuals to countries in which it is 11ely that they will be tortured, such an international norm would not be binding on the President Although the courts have sometimes suggested that customary international law is incorporated by the Constitution into the domestic law of the United States, see The Paquete Habana, 175 U.S. 677, 700 (1900) ("[i]nternational law is part of our law"), when doing so they have always emphasized that customary international law is superseded for domestic purposes by "controlling executive or legislative act[s)." Id. The President's authorization of a POW transfer would constitute a controlling executive act, and for domestic law purposes would displace any otherwise applicable norms of customary international law. See GPW Memo at 32-37.

95. Barry E. Carter & Phillip K Trimble, International Law 813 (2d ed. 1985). See also Jimenez v. United States Dist. Ct. for the So. Dist of Florida, 84 S. Ct. 14 (1963).

96. As has been noted, the Commander-in-Chief power constitutes an independent substantive grant of authority to the President to dispose of the liberty of military detainees, and is itself sufficient to satisfy the constitutional concerns articulated by Valentine with respect to military transfers. 299 U.S. at 9. The holding of Valentine, however, is that the President does not enjoy a comparable grant of inherent constitutional authority with respect to extradition. Id. at 8.

97. Treaties almost universally provide that political offenses are not the proper subject of an extradition request

98. One additional limitation may be implied from 18 U.S.C. § 3186 (1994), which provides that once all requirements for extradition have been met "the Secretary of State may order the person... to be delivered to any authorized agent of such foreign government, to be tried for the offense of which charged" (emphasis added). This language could be construed to require that the Secretary extradite an individual only if the Secretary believes that the extradition request is not a sham and that the requesting country will in fact afford the extradited individual a trial.

99. Although the Torture Convention prohibits parties from returning, expelling, or extraditing individuals "where there are substantial grounds for believing that he would be in danger of being subjected to torture," 23 I.L.M. at 1028 (emphasis added), a Senate understanding interprets that phrase to mean "if it is more likely than not that he would be tortured." 136 Cong. Rec. 36,193 (1990) (emphasis added).
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:17 pm

PART 1 OF 2

MEMO __

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

April 8, 2002

MEMORANDUM FOR DANIEL J. BRYANT
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
From: Patrick Philbin
Deputy Assistant Attorney General

Re: Swift Justice Authorization Act

This memorandum sets forth the views of the Office of Legal Counsel with regard to legislation proposed by Senator Patrick Leahy, entitled the Swift Justice Authorization Act ("SJAA"). The proposed legislation purports to vest the President with limited authority to order our Armed Forces to detain certain individuals involved in terrorist acts and to establish military commissions to try those individuals for violations of the laws of war. It also specifies procedural requirements that such military tribunals must meet.

As you know, the President has already contemplated seizing individuals involved in terrorist attacks and trying them by military commission under his Military Order of November 13, 2001. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13,2001). That Order expressly relies on, among other things, the President's constitutional authority as Commander in Chief and Congress's September 15, 2001 joint resolution authorizing the use of military force. See Authorization for Use of Military Force, Pub. L. No. 107-40,115 Stat. 224 (2001).

The legislation suffers from a number of serious constitutional defects. First, the President's authority as Commander in Chief under Article II of the Constitution to engage the Armed Forces in hostile military operations includes the power both to detain enemy combatants and to convene military commissions to punish violators of the laws of war. Legislation expressly granting the President such powers is constitutionally unnecessary. The fundamental premise underpinning the first substantive objective of the legislation-namely, "authorizing" the President to convene military commissions-is thus mistaken. And to the extent the legislation, by purporting to authorize the President to convene commissions, maybe taken to suggest that the President could not act without such authorization, it raises a serious constitutional issue because it would impermissibly encroach on the President's powers as Commander in Chief.

Second, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his constitutional authority as Commander in Chief to control the conduct of military operations during the course of a campaign. Congress cannot constitutionally restrict the President's authority to detain enemy combatants or to establish military commissions to enforce the laws of war. Indeed, Congress may no more regulate the President's ability to convene military commissions or to seize enemy belligerents than it may regulate his ability to direct troop movements on the battlefield. Accordingly, to the extent that the legislation purports to restrain the President's ability to exercise his core constitutional powers as Commander in Chief, it encroaches on authority committed by the Constitution solely to the Executive Branch and thus violates fundamental principles of separation of powers. Although the bill cites four provisions of Article I, Section 8 as sources of constitutional authority, none of those provisions authorizes Congress to encroach upon the President's constitutional power as Commander in Chief by restricting the President's ability to detain enemy combatants and to establish military commissions.

Finally, the bill states that it would provide a "clear and unambiguous legal foundation" for military tribunals. SJAA § 2(11). Again, such a foundation already exists in the Commander in Chief Clause of Article II and section 821 of title 10. As a result, it seems more likely that the legislation would confuse the legal framework for military commissions and open the door to meritless but nonetheless disruptive litigation.

Background

The proposed legislation recites that "[m]ilitary trials of certain terrorists are appropriate." SJAA § 2(9). It then proceeds from the initial premise, expressly stated in section 2, that "Congressional approval is necessary for the creation of extraordinary tribunals ... to adjudicate and punish offenses arising from the September 11, 2001 attacks against the United States and to provide clear and unambiguous legal foundation for such trials." Id. § 2(11).

Section 3 of the bill provides that the "President is hereby authorized to establish tribunals" to try persons for "violations of the law of war, including international laws of armed conflict and crimes against humanity." Id. § 3(a), (b). Section 4 sets out a lengthy list of procedural requirements that must apply in such tribunals including, inter alia, a right to counsel for the accused, a right for the accused not to be compelled to testify, and a right "at a minimum" to review by the "United States Court of Military Appeals."1

Section 5 establishes certain standards to govern detention of" persons who are not U.S. persons and are members of Al Qaeda, or of other terrorist organizations that planned, authorized, committed, or aided in the September I1 attacks or that harbored persons involved in those attacks." Id. § 5(a). It provides that "[t]he President may direct the Secretary of Defense to detain" such a person "upon a determination by a U.S. District Court that the person falls within the class described in this section." Id. Any determination to detain a person under the section "shall be appealable to the D.C. Circuit." Id. § 5(d).

The provisions of the bill would expire on December 31, 2005. See id. § 8.

Analysis

I.


The proposed legislation is premised on the express assumption that "Congressional approval is necessary" in order for the President to establish military commissions. SJAA § 2, cl. 11. A primary purpose of the legislation, therefore, appears to be providing such congressional authorization. The first operative clause of the statute provides that "[t]he President is hereby authorized to establish tribunals" to try violations of the law of war. Id. § 3(a). This purported authorization, however, reflects a mistaken premise of constitutional law. No statutory authorization is necessary for the President to convene military commissions because the President's constitutional power as Commander in Chief includes the authority to convene military commissions without any legislation from Congress. Indeed, the operative premise of the bill is particularly flawed because - even putting to one side the error of constitutional law - congressional authorization for military commissions already exists in section 821 of title 10.

A.

Article II of the Constitution vests the entirety of the "executive Power" of the United States government "in a President of the United States of America, "and expressly provides that "[t]he President shall be Commander in Chief of the Army and Navy of the United States." U.S. Const. art. 11, § 1, cl. 1; id. § 2, cl. 1. Because both "[t]he executive power and the command of the military and naval forces is vested in the President," the Supreme Court has unanimously stated that it is "the President alone[] who is constitutionally invested with the entire charge of hostile operations." Hamilton v. Dillin, 88 U.S. (21 Wall.) 73,87 (1874) (emphasis added). As Commander in Chief, the President possesses the full powers necessary to prosecute successfully a military campaign. As the Supreme Court has recognized, "[t]he first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of4he United States. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution." Johnson v. Eisentrager, 339 U.S. 763, 788 (1950) (citation omitted). See also John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Calif. L. Rev. 167,252-54 (1996) (concluding that the "Commander in Chief' power was understood in Anglo-American constitutional thought as incorporating the fullest possible range of power available to a military commander). The measures to be taken in conducting a military campaign are up to the President alone to determine. The nature of a military threat and the character of the response it requires "is a question to be decided by him... 'He must determine what degree of force the crisis demands."' The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862).

The broad Commander-in-Chief power includes not only the power to direct the Armed Forces in battle, but also - as a necessary adjunct to the military campaign - the authority to detain enemy combatants and to try them by military commissions for violations of the laws of war. At the time of the Founding it was well understood that one of the powers of a military commander included authority to subject members of enemy forces to trial and punishment for violations of the law of war. General George Washington exercised that authority during the Revolutionary War by convening aboard of officers to try the British Major Andreas a spy in 1780, and British officers throughout the colonial period exercised a similar authority.

Today there is ample evidence from all three branches of the government that the power to convene military commissions is properly understood as part of the Commander-in-Chief power of the President.

Throughout the Nation's history, as a matter of practical implementation of constitutional powers, Presidents (and subordinate military commanders acting under the President's authority) have convened commissions based solely on the President's authority as Commander in Chief. It is well settled that on issues concerning the respective powers of the different branches of government, consistent governmental practice can play an important role in establishing the constitutional bounds of each branch's authority. As the Supreme Court has explained, "'a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress but never before questioned ... maybe treated as a gloss on "Executive Power" vested in the President by § 1 of Art. II. "' Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring)).2

In the case of military commissions, the historical record demonstrates that they have regularly been established under authority of the executive branch without any authorization from Congress. Andrew Jackson, for example, convened military commissions in 1818 in the war with the Creek Indians, and as one commentator has explained, he "did not find his authority to convene [these tribunals] in the statutory law, but in the laws of war." William E. Birkhimer, Military Government and Martial Law 353 (3d ed. 1914). See also George B. Davis, A Treatise on the Military Law of the United States 308 (1913) ("authority [of military commissions] is derived from the law of war"). In other words, there was no legislation authorizing the action. Rather, under the laws and usages of war it was deemed part of the traditional authority of a military commander. And as noted above, by making the President Commander in Chief the Framers intended to convey to the Executive all such authority of a commander under established usages of war. Similarly, in the Mexican-American War in 1847-48, in the early years of the Civil War, and in the Indian wars of the 1870s, military commissions were convened based solely on the authority of the President, without any sanction from Congress. See generally Ex parte Quirin,317U.S. 1, 31-32 & nn.9 & 10 (1942) (cataloging the "practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars"); see also The Modoc Indian Prisoners, 14 Op. Att'y Gen. 249 (1873 ). In the Civil War, for example, military commissions were convened as early as 1861, see, e.g., Davis, supra, at 308 n.2, but were not even mentioned in legislation until 1863, see Act of March 3,1863, § 30,12 Stat. 731, 736. This consistent practice is well documented in the leading treatises on American military law, and demonstrates that "[m]ilitary commissions maybe appointed ... under that clause of the Constitution vesting the power of commander-in-chief in the President." Berkhimer, supra, at 357. Cf. William Winthrop, Military Law and Precedents 57 (2d ed. 1920) (the "President is invested with a general and discretionary power to order statutory courts-martial for the army, by virtue of his constitutional capacity as Commander-in-chief independently of any article of war or other legislation of Congress") (emphasis original).

In keeping with this longstanding practice, the Executive Branch has consistently recognized that the use of military commissions is no less a part of the powers of a commander-and thus no less a constitutional exercise of the Commander-in-Chief power-than the conduct of a battle itself As Attorney General Speed explained at the close of the Civil War, "[t]he commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war." Military Commissions, 11 Op. Att'y Gen. 297, 305 (1865). William Whiting, the legal adviser to the War Department during the Civil War, similarly observed that "military commissions ... were instituted under the general war power of the Commander-in-Chief, - a power which was fully conceded by the Supreme Court of the United States, - not under the authority of Congress." William Whiting, War Powers under the Constitution of the United States 282 (1864). They "constitute usual and necessary parts of the machinery of warfare, and are the essential instruments of that military government by which alone the permanency of conquest can be secured." Id. at 283.

Such commissions serve a particularly military function in controlling the conduct of a military campaign. They are the tool a commander can use to punish, and thereby deter, enemy violations of the laws that regulate the means of waging war. Thus, they are an integral part of the mechanisms a commander has at his disposal for bringing pressure to bear on the enemy and for shaping enemy behavior in the course of a conflict. As Justice Douglas observed, trials for war crimes are "a furtherance of the hostilities directed to a dilution of enemy power and involving retribution for wrongs done." Hirotav. MacArthur, 338 U.S. 197, 208 (1948) (Douglas, J., concurring). For example, an enemy's use of a particular weapon that maybe deemed illegal under relevant conventions may threaten the success of military operations or may threaten to fatally undermine the morale of troops subjected to the illegal attacks. A swift imposition of penalties on captured members of the enemy forces for use of the weapon may deter like conduct in the future and thus return the means of pursuing the conflict to terms more favorable to the commander. Likewise, the failure of enemy combatants to respect the distinction between civilians and military in their conduct of hostilities-for example, by using civilians and otherwise protected civilian structures (such as churches or mosques) to shield their troops and military equipment, or by targeting our civilians and civilian facilities for the use of force (as was done on September 11)-could also have effects on morale and frustrate our ability to minimize civilian casualties and focus our military campaign on actual combatants. The use of military commissions to punish such actions as violations of the laws of war would enhance our capacity to wage war effectively and to minimize civilian casualties by forcing enemy combatants to adhere to the strict distinction between civilians and combatants. Determining when and how such violations should be dealt with in a manner that best supports the overall conduct of a campaign requires assessment of numerous factors including the threat that the enemy conduct poses to the success of operations in the theater, the personnel and resources that can be spared for conducting war crimes trials, and the likelihood that pursuing such trials will have a beneficial result. All such decisions are quintessentially matters for the person charged with the conduct of military operations, which under the Constitution is the President in his role as Commander in Chief.

The Supreme Court has also acknowledged that the use of military commissions is fundamentally apart of prosecuting a military campaign. And although the Court has not expressly resolved the question, its reasoning in addressing military commissions strongly suggests that the authority for their creation must be found in the President's power as Chief Executive and Commander in Chief. During World War II, for example, the Court unanimously held that "[a]n important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." Quirin, 317 U.S. at 28-29; see also Application of Yamashita, 327 U.S. 1, 11 (1946) (same). Indeed, the Court even recognized that "[t]he trial and punishment of enemy combatants who have committed violations of the law of war" is "a part of the conduct of war operating as a preventive measure against such violations." Yamashita, 327 U.S. at 11 (emphasis added). See also id. at 12 (the "war power, from which the commission derives its existence, is not limited to victories in the field," but also extends to convening military commissions). The power to use commissions as a mechanism for deterring enemy conduct properly belongs to the President as Commander in Chief. As Justice Douglas recognized, the President's power as Commander in Chief "is vastly greater than that of troop commander. He not only has full power to repel and defeat the enemy; he has the power to occupy the conquered country, and to punish those enemies who violated the law of war." Hirota, 338 U.S. at 208 (Douglas, J., concurring) (citation omitted). In Justice Douglas's view, this power properly extended even to trying enemy prisoners before an international tribunal created solely by the Executive through agreement with allies without any sanction from Congress- a power that would include a fortiori the ability to convene American military commissions. As Justice Douglas put it: "[T]he capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander-in- Chief, and as spokesman for the nation in foreign affairs, had the final say." Id. at 215 (emphasis added).

It is true that in Quirin, the Court reserved the question whether the President, acting solely under his own constitutional authority and without congressional authorization, could convene military commissions for trying violations of the law of war. See 317 U.S. at 29. But at the same time, as the passages noted above make clear, the Court recognized that the military commission is a mechanism that is an integral part of the conduct of military operations in war, the complete control over which the Constitution assigns to the President as Commander in Chief. See also Hirota, 338 U.S. at 208 (Douglas, J., concurring) (noting that the creation of war crimes tribunals "is a furtherance of the hostilities directed to a dilution of enemy power and involving retribution for wrongs done'). The Court, moreover, indicated that serious questions would be raised if military commissions were treated as anything other than creatures of the President's authority as Commander in Chief, as it pointedly declined to address the question "whether Congress may restrict the power of the Commander in Chi of to deal with enemy belligerents" by imposing procedures for military commissions. Quirin, 317 U.S. at 47. Indeed, the President's plenary authority over enemy belligerents in an armed conflict is sufficiently great that the Court even reserved the question "whether the President is compelled by the Articles of War to afford unlawful enemy belligerents a trial before subjecting them to disciplinary measures." Id.

In its subsequent decision in Yamashita, the Court even more clearly suggested that military commissions could be convened by the President without reliance on authorization from Congress. In responding to claims that the commission at issue there had failed to adhere to procedures required by the Articles of War, the Court made clear that commissions convened to try enemy belligerents for violations of the law of war were not subject to those provisions at all. The Court explained that such a commission, "though sanctioned, and its jurisdiction saved, by Article 15, was not convened by virtue of the Articles of War, but pursuant to the common law of war." Yamashita, 327 U.S. at 20 (emphasis added). In other words, the authority for convening the commission did not derive from statute (the Articles of War), but from the traditional powers of the military commander-which the Constitution explicitly assigns to the President. Thus, while the Court may not have resolved the issue explicitly, its reasoning in cases such as Quirin and Yamashita plainly suggests that the authority to convene military commissions for trying violations of the law of war falls within the President's constitutional powers.

The Court has expressly held, moreover, that the President has the authority as Commander in Chief, without any sanction or authorization from Congress, to establish military commissions and other military tribunals to administer the law in occupied territory. In Santiago v. Nogueras, 214 U.S. 260 (1909), for example, the Court addressed the "provisional court" in Puerto Rico "established by military authority, with the approval of the President," id. at 264, during the occupation immediately following the Spanish-American War. The Court rejected the claim that "the military power, acting by the authority of the President as Commander in Chief, does not warrant the creation of the United States provisional court" and upheld the President's power to create the court. Id. at 265. See also Mechanics' & Traders 'Bank v. Union Bank, 89 U.S. (22 Wall.) 276,296 (1874) (stating, of military courts established in occupied territory in the South after the Civil War, that "though these courts and this judicial system were established by the military authority of the United States, without any legislation of Congress, this court ruled that they were lawfully established"); The Grapeshot, 76 U.S. (9 Wall.) 129,132 (1869) (stating that creation of provisional court in Louisiana "was a military duty, to be performed by the President as commander-in- chief'); Leitensdorfer v. Webb, 61 U.S. (20 How.) 176 (1857). See also United States v. Tiede, 86 F.R.D. 227,237 (U.S. Ct. Berlin 1979) ("As a matter of United States law, [the United States occupation court of Berlin] is a court established pursuant to the powers granted to the President by Article II of the United States Constitution."). If the President's inherent power as Commander in Chief extends to the creation of military commissions as occupation courts, there is no logical reason to conclude that it does not equally extend to the creation of military commissions as courts for enforcing the laws of war. If anything, the latter function is more inextricably involved in the President's role as military commander in supervising the actual conduct of hostilities.

Lastly, the Legislative Branch has also previously acknowledged that the President has independent authority to create military commissions without the aid of enabling legislation. As explained above, in numerous instances throughout the Nation's history Presidents exercised the authority to convene commissions absent any legislation, a practice that to our knowledge has never been contested by Congress. Moreover, at the beginning of the 20th century when Congress expanded the statutory jurisdiction of courts martial to reach violations of the law of war, it expressly acknowledged and left unimpaired the President's preexisting authority to convene military commissions to try the same offenses. In 1916, a new Article 15 was introduced into the Articles of War and provided that "[t]he provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions." Act of August 29, 1916, 39 Stat. 619, 653. The provision was phrased as a form of savings clause. It did not create military commissions, nor did it purport to confer jurisdiction upon them. Rather, it assumed their existence entirely apart from any statute and provided merely that the expansion of court martial jurisdiction did not "depriv[e]" commissions of their jurisdiction.

The Supreme Court, indeed, has explained that this provision demonstrates a congressional recognition of a preexisting authority in the Executive to convene military commissions to try violations of the laws of war. Thus, the Court has held that, by enacting Article 15,Congress "recognized the 'military commission' appointed by military command, as it had previously existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war." Yamashita, 327 U.S. at 7 (emphasis added). Similarly, the Court noted that Article 15 "incorporated, by reference, as within the preexisting jurisdiction of military commissions created by appropriate military command, all offenses which are defined as such by the law of war .... By thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired ... Congress gave sanction ... to any use of the military commission contemplated by the common law of war." Id. at 7-8, 20 (emphases added).3 The Court has also explained that the testimony of Judge Advocate General Crowder in the legislative history preceding the enactment of Article 15 is "authoritative" concerning the provision's meaning. Madsen v. Kinsella, 343 U.S. 341, 353(1952). In proposing the adoption of Article 15, General Crowder explained to Congress that the military commission is a common law tribunal that "has no statutory existence, though it is recognized by statute law," and that the purpose of Article 15 was to "save[] to these war courts the jurisdiction they now have and make[] it a concurrent jurisdiction with courts-martial." S. Rep. No. 64-130, at 40 (1916).4

The same statutory language recognizing the pre-existing authority to convene military commissions under the common law of war is still preserved in Article 21 of the Uniform Code of Military Justice, 10 U.S.C. § 821 (2000), which is simply a recodification of the former Article 15 of the Articles of War. See Madsen, 343 U.S. at 351 n.17 ("Article of War 15 ... was again reenacted May 5, 1950, as the present Article 21 of the Uniform Code of Military Justice.").

The proposed legislation purporting to authorize the President to convene military commissions thus proceeds from a flawed premise to the extent it suggests that the President cannot act without such authorization. No statutory approval is necessary because the President possesses constitutional power under the Commander-in-Chief Clause to establish such tribunals himself, and presidents have exercised that authority throughout the nation's history.
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:18 pm

PART 2 OF 2

B.

The recodification of former Article 15 of the Articles of\Var as Article 21 of the current UCMJ also highlights another flaw in the fundamental premise underpinning this legislation. Even putting to one side the fact that as a matter of constitutional law there is no need for congressional authorization for military commissions, the proposed legislation is unnecessary because 10 U.S.C. § 821 already provides congressional approval for such commissions. As is apparent from the passages quoted above, the Supreme Court has authoritatively interpreted section 821 as both a recognition of the pre-existing jurisdiction of military commissions and as an express sanction for continued exercise of that jurisdiction. The Court has thus stated that, by the same language that is currently codified in section 821, Congress has given "sanction ... to any use of the military commission contemplated by the common law of war." Yamashita, 327 U.S. at 20. Similarly, the Court has explained that "[b ]y the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war." Quirin, 317 U.S. at 28. The Supreme Court's interpretation of this language is definitive.5

Thus, as a mechanism for "authorizing" military commissions, the proposed legislation is redundant. As a result, it misstates the law to suggest that this legislation is legally necessary to support the President's Military Order.

II.

The proposed legislation suffers from further flaws in that it purports to circumscribe the President's authority to detain enemies suspected of war crimes and to establish military commissions to try them for violations of the law of war. To the extent that the legislation is intended to suggest that the President may operate only within the confines of the legislation, it is unconstitutional as an encroachment on the President's powers as Commander in Chief. We are aware of no other legislation that similarly attempts to interfere in the manner in which the Commander in Chief deals with enemy combatants.

The President's Article]] authority as Commander in Chief includes, as demonstrated above, the power to detain enemy combatants and to establish military commissions to punish violations of the law of war. As explained in Part A below, fundamental principles of separation of powers forbid Congress from interfering with the President's exercise of his core constitutionally assigned duties, absent "exceptions and qualifications... expressed" in Article I. Myers v. United States, 272 U.S. 52, 139 (1926). Indeed, the structure of the Constitution demonstrates that any ambiguity in the allocation of a power that is executive in nature, such as the prosecution of war, must be resolved in favor of the Executive Branch. Article II, Section 1 of the Constitution states broadly that “the executive Power shall be vested in a President of the United States of America." It thus assigns the President an unenumerated "executive Power." U.S. Const. art. II, § 1. By contrast, Article I's Vesting Clause limits Congress to those "legislative Powers herein granted." U.S. Const. art. I, § 1(emphasis added). Article I thus limits Congress to the specific powers identified in the text of the Constitution. Article II, in contrast, vests the President with the entire executive power of the government without limitation, and the subsequent enumeration of executive powers within Article II should be understood as an illustration of some of those powers, but not an exhaustive catalogue of the President's authorities. As Alexander Hamilton wrote, Article II "ought ... to be considered as intended.. . to specify and regulate the principal articles implied in the definition of Executive Power, leaving the rest to flow from the general grant of that power." Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33,39 (Harold C. Syrett et al. eds., 1969)6

As explained in Part B, nothing in Article I vests in Congress the authority to restrict the President's ability to prosecute war successfully by detaining enemy combatants and establishing military commissions.

A.

The constitutional principle of separation of powers forbids one branch of government from usurping or controlling the exercise of powers assigned by the Constitution to another branch. As the Supreme Court has explained, the "Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." INS v. Chadha, 462 U.S. 919, 951 (1983). The structural separation of roles in the Constitution means that Congress may not "intrude[] into the executive function" by arrogating to itself control over duties assigned to the Executive. Boxsher v. Synar, 478 U.S. 714, 734 (1986). This prohibition on congressional encroachment is especially strict with respect to the President's express constitutional powers under Article II. See, e.g., Schick v. Reed, 419 U.S. 256 (1974) (addressing the pardon power). As Justice Kennedy has observed, "where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch." Public Citizen v. United States Dept of Justice, 491 U.S. 440, 485 (1989) (Kennedy, J., concurring). See also id. at 486 ("Where a power has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself. It is improper for this Court to arrogate to itself the power to adjust a balance settled by the explicit terms of the Constitution.').

Accordingly, the Supreme Court has protected the express constitutional prerogatives of the executive from impairment by Congress on a number of occasions. For example, because the President's pardon power, U.S. Const. art. II, § 2, cl. 1, "flows from the Constitution alone, not from any legislative enactments," the Court has held that that power "cannot be modified, abridged, or diminished by the Congress." Schick v. Reed, 419 U.S. at 266. See also United States v. Klein, 80 U.S. (13 Wall.) 128, 148 (1871) ("[T]he legislature cannot change the effect of... a pardon anymore than the executive can change a law."). The President's constitutional duty to "take Care that the Laws be faithfully executed," U.S. Const. art. II, § 3, similarly vests him with a broad range Of Prosecutorial discretion with which Congress may not interfere. See Buckley v. Valeo, 424 U.S. 1,138 (1976) ("A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to 'take Care that the Laws be faithfully executed."'); Springer v. Philippine Islands, 277 U.S.189, 189,202 (1928) ("Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions."); Fletcher v. Peck, 10 U.S. (6 Cranch) 87,136 (1810) ("It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.').7

Particularly where the Constitution expressly assigns a duty to the Executive, the Supreme Court has recognized grave constitutional flaws with attempts by Congress to effect encroachments upon subjects within the Executive's control. In Public Citizen v. United States Department of Justice, for example, the Court concluded that there would be "formidable constitutional difficulties" with applying the Federal Advisory Committee Act ("FACA") to the American Bar Association's ("ABA") former practice of advising the President with respect to judicial nominations. 491 U.S. at 466. FACA merely regulates the manner in which executive branch officials obtain information from private individuals and organizations. Nevertheless, the Court concluded that applying FACA to the ABA might "infringe[] unduly on the President's Article II power to nominate federal judges" and thereby "violate[] the doctrine of separation of powers." Id.; see also id. at 488-89 (Kennedy, J., concurring) ("The mere fact that FACA would regulate so as to interfere with the manner in which the President obtains information necessary to discharge his duty assigned under the Constitution to nominate federal judges is enough to invalidate the Act.").

These principles apply with equal if not greater force with regard to the President's express constitutional war powers as Commander in Chief. As the Supreme Court has made clear, by virtue of the Commander-in-Chief Clause, it is "the President alone[] who is constitutionally invested with the entire charge of hostile operations." Hamilton, 88 U.S. at 87. As explained above, military commissions are an instrumental ity of the commander used in carrying out military operations against enemy forces. They are "[a]n important incident to the conduct of war," Quirin, 317 U.S. at 28-29, and "operat[e] as a preventive measure against" violations of the law of war, Yamashita, 327 U.S. at 11.

The proposed legislation thus would unconstitutionally infringe on the President's powers as Commander in Chief in at least two ways. First, it would dictate the procedures for military commissions and impose- in some instances -requirements that have never before applied to military commissions as convened in the past under the President's authority. Precisely because commissions are an instrument used as part and parcel of the conduct of a military campaign, congressional attempts to dictate their precise modes of operation interfere with the means of conducting warfare no less than if Congress were to attempt to dictate the tactics to be used in an engagement against hostile forces. As explained above, the Supreme Court has indicated that such efforts to impose congressional control in this field would raise grave constitutional questions, as the Court has pointedly declined to decide whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents" by imposing procedures for military commissions. Quirin, 317 U.S. at 47. It bears noting, moreover, that in over 225 years, Congress has never before attempted to dictate the procedures used by military commissions to try enemy combatants. To the contrary, as the Supreme Court has made clear, the purpose of the provision now codified in 10 U.S.C. § 821 was to preserve "unimpaired" the jurisdiction of military commissions, Yamashita, 327 U.S. at 20, and to give "sanction" to the existing practice of convening commissions under military command "without qualification as to the exercise of this authority so long as a state of war exists," id. at 11-12 (emphasis added). Thus, the statutory provisions currently addressing military commissions "left the control over the procedure in such a case where it had previously been, with the military command." Id. at 20. As the Supreme Court has noted in another context, an "utter lack of statutes" over the course of American history "suggests an assumed absence of such power." Printz v. United States, 521 U.S. 898,907-08 (1997).8

Second, beyond regulating the procedures for military commissions, the legislation apparently purports to restrict the President's ability even to detain enemy combatants with a view to bringing them before military commissions. Section 5 provides that the President "may direct the Secretary of Defense to detain persons who are not U.S. persons and are members of Al Qaeda ... upon a determination by a U.S. District Court that the person falls within the class described in this section." SJAA § 5(a). Although the bill does not make entirely clear how this provision would operate, it seems to apply even to the detention of persons captured in the midst of the armed conflict in Afghanistan who are suspected of having engaged in terrorist activities with at Qaeda. The bill makes it express, after all, that it addresses treatment of persons "who are apprehended in Afghanistan, fleeing there from, or engaged outside the United States in terrorist activities directed against the United States." Id. § 3(a)(2). If the legislation is intended to apply in this manner, it is a flatly unconstitutional encroachment on the President's powers as Commander in Chief to conduct a military campaign. It is no exaggeration to say that, since time immemorial, it has been an inherent power of a military commander to take prisoners and to detain enemy forces seized in combat. Presidents have exercised this authority in virtually every armed conflict in the Nation's history. See generally Lt. Col. George G. Lewis & Capt. John Mewha, History of Prisoner of War Utilization by the United States Army 1776-1945, Dep't of the Army Pamphlet No. 20-213 (1955); Major General George S. Prugh, Law at War: Vietnam 1964-1973 (Dep't of the Army 1975). The apparent effort in this proposed legislation to require civilian court approval before the Commander in Chief can hold enemy combatants for purposes of pursuing war crimes trials would thus be a wholly unprecedented and unconstitutional effort to interfere with the President's constitutionally assigned powers.

The Supreme Court, indeed, has expressly addressed the encroachment on the President's powers as Commander in Chief that would result from even permitting - far less requiring - a recourse to the courts to review or approve the detention of enemies captured abroad in battle:

It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.


Eisentrager, 339 U.S. at 779. This passage could have been written with the provisions of this bill in mind, and it amply demonstrates the unconstitutional infringement on the President's powers that the bill would effect.

B.

Nor can the restrictions the bill purports to impose on the President be justified by any grant of power to Congress in the Constitution. To be sure, the Constitution does assign Congress certain specific powers that relate to war. Congress has the power to declare war. U.S. Const. art. I, § 8, cl. 11. It can also deprive the Executive Branch of the funds necessary to prosecute war successfully. Id. § 8, cls. 12- 13; id. § 9, cl. 7. But Congress's war-related powers "extend[] to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief." Ex parte Milligan, 71 U.S. (4 Wall.) 2,139 (1866) (Chase, C.J., concurring). Congress thus may not use its express Article I war powers to restrict or regulate directly the President's ability to exercise his constitutional powers as Commander in Chief, absent an express assignment of authority in the Constitution related to a specific matter. As explained below, none of the four provisions of Article I, Section 8 cited in the proposed legislation, see SJAA, § 2(10), authorizes Congress to restrict the President's ability to detain enemy combatants and to bring them for trial before military commissions.

1.

The proposed legislation is plainly not a valid exercise of Congress’s power to "constitute Tribunals inferior to the supreme Court." U.S. Const. art. I, § 8, cl. 9 ("Inferior Tribunals Clause"). For purposes of that clause, it is long settled that the term "Tribunals" includes only certain kinds of courts- namely, only those courts that are established pursuant to Article III of the Constitution. It cannot plausibly be contended that the term "Tribunals" covers every arm of the United States government authorized to conduct proceedings that might be described as judicial in nature. Indeed, the text and structure of the Constitution itself indicate a contrary interpretation. The Inferior Tribunals Clause tracks closely the language in Article III, which provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § I (emphasis added). Accordingly, it has long been established by decisions of the Supreme Court that Congress's authority under the Inferior Tribunals Clause is limited solely to the establishment of Article III courts. As the Supreme Court explained in Glidden Co. v. Zdanok, 370 U.S. 530 (1962), "[t]he power given Congress in Art. I, § 8, cl. 9, 'To constitute Tribunals inferior to the supreme Court,' plainly relates to the 'inferior Courts' provided for in Art. IN, § 1; it has never been relied on for establishment of any other tribunals." Id. at 543 (emphasis added). See also Freytag v. Commissioner, 501 U.S. 868,902 (1991) (Scalia, J., concurring) (same); 3 Joseph Story, Commentaries on the Constitution of the United States § 1573, at 437 (reprinted 1991) (1833) (Congress's power under the Inferior Tribunals Clause "is but a mere repetition" of its Article III power to ordain and establish inferior courts).

Thus, the Inferior Tribunals Clause has not been relied upon as a source of authority for courts created by Congress other than Article lII courts. In American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511(1828), for example, the Supreme Court held that Congress's power to establish territorial courts is found not in the Inferior Tribunals Clause, but rather in its power under Article IV of the Constitution to "make all needful Rules and Regulations respecting the Territory... belonging to the United States." U.S. Const. art. IV, § 3, cl. 2. The Inferior Tribunals Clause is not the basis on which Congress is authorized to create territorial courts, because they are not courts within the meaning of Article I of the Constitution. See Am. Ins., 26 U.S. at 546 ("territorial Courts" of Florida "are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited," but instead "are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States"); see also Williams v. United States, 289 U.S. 553, 565-66 (1933) (same); Frey-tag, 501 U.S. at 913 (Scalia, J., concurring) (referring to territorial courts as "Article IV courts").

Similarly, Congress's authority to establish local courts for the District of Columbia arises out of its Article I power to "exercise exclusive Legislation in all Cases whatsoever, over such District ... as may . become the Seat of the Government of the United States." U.S. Const. all. I, § 8, cl. 17. See Palmore v. United States, 411 U.S. 389, 398 (1973); Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899). And other so-called "Article I courts "have likewise been created under provisions of Article 1, Section 8 other than the Inferior Tribunals Clause. Congress established the United States Court of Federal Claims (formerly known as the Court of Claims) as "a court established under article I of the Constitution of the United States," 28 U.S.C. § 171, pursuant to its Article I power "to pay the Debts.. . of the United States," U.S. Const. art. I, § 8, c1.1, and not its power under the Inferior Tribunals Clause. See Ex parte Bakelite Corp., 279 U.S. 438,452 (1929) ("The Court of Claims... was created, and has been maintained, as a special tribunal to examine and determine claims for money against the United States. This is a function which belongs primarily to Congress as an incident of its power to pay the debts of the United States.'). Article I courts have also been established to consider certain questions arising out of the customs laws, pursuant to Congress's "Power To lay and collect ... Duties." U.S. Const. art. I, § 8, cl. 1. See, e.g., Bakelite Corp., 279 U.S. at 458 ("The Court of Customs Appeals was created by Congress in virtue of its power to lay and collect duties on imports..."). Likewise, Congress has long established the United States Tax Court as a court of record "under article I of the Constitution of the United States," 26 U.S.C. § 7441, on the basis of its "Power To lay and collect Taxes," U.S. Const. art. I, § 8, cl. 1. See Burns, Sax Friedman & Co., Inc. v. Commissioner, 57 T.C. 392, 394-95 (1971) ("In article 1, section 8, clause 1, Congress is given the power to lay and collect taxes... [and] [i]t was in the exercise of that power that Congress ... created ... the Tax Court of the United States").

As the Supreme Court has unanimously and repeatedly recognized, military commissions are not "courts" established under Article III. See Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 253 (1863) (military commissions are not' judicial" in the "sense in which judicial power is granted to the courts of the United States'); Quirin, 317 U.S. at 39 ("military tribunals ... are not courts in the sense of the Judiciary Article"). See also Mechanics' & Traders' Bank, 89 U.S. at 295 (holding, in the context of military courts created for the governance of occupied territory, that they are not created under Article UI because that provision "refers only to courts of the United States, which military courts are not"). The power to create military commissions derives from the President's Article II power as Commander in Chief. As the Supreme Court explained in Yamashita, although military commissions have been sanctioned by Congress, they are "not convened by virtue of the Articles of War, but pursuant to the common law of war." 327 U.S. at 20. They are Article II courts, not Article III courts. Accordingly, there is no basis for contending that the Inferior Tribunals Clause empowers Congress to establish or regulate military commissions.

2.

Nor is the legislation a valid exercise of Congress's power to "make Rules concerning Captures on Land and Water." U.S. Const. art. I, § 8, cl. 11("Captures Clause"). That provision has never been applied by the courts or by Congress to captured persons. Rather, it has consistently been understood as pertaining to captured property only.

The roots of the Captures Clause can be traced to Article IX of the Articles of Confederation, which vested in Congress the power "of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated." Articles of Confederation, art. IX, reprinted in Encyclopedia of the American Constitution app. 2, at 2094 (Leonard W. Levy ed., 1986). Read as a unit, this provision vested with the Confederation Congress the power to establish rules governing the circumstances under which wartime "captures" would be adjudged lawful "prizes," to which the captors are entitled at least partial title. This construction is supported by the fact that, during the Revolution, captors could not claim lawful title to captured property until after a prize court had granted it. See generally C. Kevin Marshall, Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars, 64 U. Chi. L. Rev. 953, 963, 974-77 (1997). Article IX therefore could not have been meant to apply to captured enemy soldiers, an interpretation that is bolstered by the fact that persons can neither be "divided" nor "appropriated" as the provision expressly contemplates. Moreover, the term "capture," which is used both in the Articles of Confederation and in the Constitution, is defined by international law as "[t]he taking of property by one belligerent from another or from an offending neutral." I Bouvier's Law Dictionary 422 (Rawle's 3d rev. 1914). Thus, in his exhaustive commentaries on the Constitution, Justice Story noted that Article 1, Section 8, Clause l 1 confers on Congress the power to "authorize the seizure and condemnation of the property of the enemy within, or without the territory of the United States." 3 Story, supra, § 1172, at 64. He made no mention of any authority being vested in Congress over captured persons.

This contextual understanding of the Captures Clause, buttressed by the absence in the historical record of any invocations of the clause by Congress or the courts in support of legislation applying to captured persons, leaves no doubt that Congress's power to "make Rules concerning Captures on Land and Water" applies only to captured property.

3.

The legislation also cites Congress's Article I authority to "define and punish ... Offenses against the Law of Nations" as a basis for restricting the President's authority to punish violators of the laws of war. U.S. Const. art. I, § 8, c1. 10 ("Define and Punish Clause"). But nothing in this generalized grant of authority relating to offenses against the law of nations constitutes a specific grant of power that would permit Congress to interfere with the President's constitutional authority as Commander in Chief to establish, and conduct trials before, military commissions.

The Constitution authorizes Congress "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." U.S. Const. art. 1, § 8, cl. 10.9 As the records of the Philadelphia Constitutional Convention of 1787 make clear, the delegates understood that the purpose of the Clause was simply to correct a particular inadequacy in the power of the national government under the Articles of Confederation. Federal remedies against acts of piracy, felonies on the high seas, and other violations of the laws of nations under the Articles were inadequate. Thus, Edmund Randolph argued in favor of the new provision on the ground that the Articles of Confederation were deficient in that Congress "could not cause infractions of treaties or of the law of nations, to be punished." I Farrand, supra note 10, at 19. As a result, claims based on the law of nations - such as claims of wrongs by ambassadors- were relegated to state courts, not all of which provided any protections. That system also ensured that no stable and consistent federal law was developed. See id. at 25 (statement by Randolph that "[i] f the rights of an ambassador be invaded by any citizen it is only in a few States that any laws exist to punish the offender"). See also 2 Fatrand, supra note 10, at 316 (Aug. 17,1787) (statement of James Madison); see also The Federalist No. 42 (James Madison); 3 Story, supra, §§ 1153,1158, at 52, 56. These defects were to be remedied by the power granted to Congress in the Constitution.

The debates about the Clause, moreover, centered wholly on Congress's power to create federal law defining and criminalizing offenses against the law of nations. They demonstrate that including the power to "punish" offenses was not meant in any way to give Congress a distinct power to interfere with the machinery of enforcement - such as by creating special tribunals. The original phrasing of the provision assigned Congress the power "To declare the law and punishment of piracies and felonies &c." 2 Farrand, supra note 10, 315. That phrasing clearly indicates that the provision was intended to assign Congress nothing more than the ordinary power to set the punishment for violations of criminal laws. The debate that produced the current phrasing of the clause demonstrates that the changes in wording were not intended to alter the substance of the provision at all. Instead, they were prompted largely in response to a concern raised by Edmund Randolph about the "efficacy of the word 'declare."' Id. The same powers to "declare the law and punishment" for offenses against the law of nations were thus conveyed by more active verb forms allowing Congress to "define" and "punish" such offenses. See id. at 316. The change in no way reflected an attempt to give Congress a greater role in the enforcement mechanisms used for addressing such offenses. It bears noting that other provisions of the Constitution that gave Congress powers such as the power to create inferior tribunals to the Supreme Court generated extensive debate. The absence of any similar discussion in relation to the Define and Punish Clause suggests that the Framers did not understand the provision as creating any new power in Congress to create additional tribunals or otherwise to embark on forays into the enforcement of the laws that had been assigned to the Executive.

The records of the Convention certainly in no way suggest that the Framers understood the Define and Punish Clause as having anything to do with empowering Congress to control the Executive Branch's ability to enforce the laws and customs of war during a military campaign. Instead, as noted above, the provision was intended simply to ensure adequate federal enforcement mechanisms for prosecuting violations of the law of nations, such as offenses against ambassadors, diplomats, and other foreign subjects,10 piracy, and felonies on the high seas. Indeed, unlike debates over other Congressional powers under Article I (such as the "declare War" clause, U.S. Const. art. I, § 8, cl. 11), nothing in the convention discussion about the Define and Punish Clause suggests that it was intended to confer a war-related power upon Congress at the expense of the President's power as Commander in Chief.11

Given the express textual commitment of the Commander-in-Chief power to the president, the Constitution should not be read to pen-nit Congress to encroach on the Commander's traditional functions unless there is an equally express assignment of particular functions to Congress. The Framers clearly knew how to make such an assignment of power to the Legislative Branch when it was intended. For example, in the absence of further direction in the Constitution, the authority to establish mechanisms for enforcing discipline within the armed forces would likely have been included in the grant of the Commander-in-Chief power to the President. The Constitution, however, makes it express that Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces." U.S. Const. art. I, § 8, cl. 14.12 Absent an equally express grant of power to Congress over the task of enforcing the laws of war against the enemy, the Constitution should be understood as leaving that function with the Commander in Chief.

It is true that the Supreme Court has pointed to the Define and Punish Clause as the authority for the provision now codified at 10 U.S.C. § 821, which gives congressional sanction, without limitation or restriction, to the President's use of military commissions to enforce the laws of war (which are a part of the "Law of Nations"). See, e.g., Yamashita, 327 U.S. at 7. But that in no way suggests that the Clause provides Congress power to dictate to the President the manner in which he may operate military commissions to enforce the laws of war. The Court has definitively determined that section 821 acknowledges and sanctions the existing practice of convening military commissions under the authority of military command "without qualification." Id. at 11. Thus, military commissions convened to punish enemy violations of the law of war are not convened under a congressional grant of power, but rather "pursuant to the common law of war." Id. at 20. The Court's suggestion that Congress may properly express its unqualified approval of Executive practice in this field in no way suggests that Congress possesses the far different power to curtail the President's ability as Commander in Chief to prescribe the procedures for such commissions. To the contrary, the Court has acknowledged that assertion of such a power would raise a serious constitutional issue and has expressly declined to address whether Congress has any such power to restrict the President's use of military commissions. See, e.g., Quirin, 317 U.S. at 47 (declining to address "whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents" through regulations on military commissions).

Nothing in the text or the history of Article I's general grant of authority to incorporate international law into federal law authorizes Congress to interfere with the President's specific authority as Commander in Chief to convene military commissions to punish violators of the laws of war.

4.

Lastly, the legislation relies on the Necessary and Proper Clause as its constitutional basis. U.S. Const. art. 1, § 8, c1. 18. But nothing in that provision-which the Supreme Court recently described as "the last, best hope of those who defend ultra wires congressional action," Printz, 521 U.S. at 923 - authorizes Congress to enact legislation that would infringe upon the core constitutional powers of the Executive Branch. See, e.g., Chadha, 462 U.S. 919 (invalidating legislative veto provision, holding that Necessary and Proper Clause does not authorize Congress to usurp President's legislative role under Article 1, Section 7); Buckley, 424 U.S. at 138-39 (Necessary and Proper Clause does not authorize Congress to violate Presidential powers under the Appointments Clause); cf. also Printz, 521 U.S. at 923- 24 ("When a 'La[w] ... for carrying into Execution' the Commerce Clause violates the principle of state sovereignty reflected in ... various constitutional provisions... . it is not a' La[w] ... proper for carrying into Execution the Commerce Clause,' and is thus, in the words of The Federalist, 'merely [an) ac[t] of usurpation' which 'deserve[s] to be treated as such."); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (Necessary and Proper Clause confers upon Congress authority only to legislate through "means ... which are not prohibited, but consist with the letter and spirit of the constitution ... ').

III.

The bill recites that the proposed legislation would "provide a clear and unambiguous legal foundation for such trials" by military commission. SJAA § 2(11). This finding implies that, without this legislation, the "legal foundation" for military commissions would be uncertain or suspect. For the reasons outlined above, we believe that suggestion is incorrect. There is no need for additional statutory authorization for the President to establish military commissions. The authority both to detain enemy combatants and to try them for violations of the laws of war by military commission falls squarely within the President's constitutional power as Commander in Chief. Moreover, statutory authorization already exists in 10 U.S.C. § 821.

If the legislation merely reaffirmed the President's existing authority, it would like]y do no harm. As drafted, however, the proposed legislation attempts to impose substantive limits on the President's authority that, as explained above, are unconstitutional. Moreover, the legislation might even undermine the President's ability to proceed expeditiously with military commissions, because it would likely trigger meritless but nonetheless burdensome and disruptive litigation. Some defendants undoubtedly would argue that the legislation provides them rights that they may seek to enforce through actions (including petitions for writs of habeas corpus) in the federal courts. Although we believe that such assertions would be meritless, even frivolous litigation would impose substantial costs and delays on the President's efforts to prosecute the campaign against terror-ism. Baseless lawsuits would unnecessarily distract the Executive from devoting attention and resources to the successful prosecution of the war.

_______________

Notes:

1. This appears to be a drafting error in the legislation. The United States Court of Military Appeals no longer exists under that name. The court is known today as the United States Court of Appeals for the Armed Forces. See National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § 924(a)(1), 108 Stat. 2663, 2831 (1994) ("The United States Court of Military Appeals shall hereafter be known and designated as the United States Court of Appeals for the Armed Forces.').

2. See also Schick v. Reed, 419 U.S. 256, 266 (1974) ("[T]he unbroken practice since 1790 compels the conclusion that the [pardon] power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress."); Ludecke v Watkins, 335 U.S. 160, 171 (1948) (explaining importance of historical practice in interpreting the Constitution and noting that "[t]he [Alien Enemy) Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights").

3. See also Yamashita, 327 U.S. at 10 ("The congressional recognition of military commissions and its sanction of their use in trying offenses against the law of war ... sanctioned their creation by military command in conformity to long-established American precedents.").

4. Even in 1952, when the substance of Article 15 had been law for over 30 years, the Supreme Court could still say of military commissions that "(n)either their procedure nor their jurisdiction has been prescribed by statute." Madsen, 343 U.S. at 347.

5. Indeed, Congress is ordinarily presumed to act with knowledge of the Court's interpretation of statutory language, and reenactment of the same language is thus deemed a congressional endorsement of the Court's reading. See, e.g., Davis v. United States, 495 U.S. 472, 482 (1990) (reenactment of same language "indicates [Congress's) apparent satisfaction with the prevailing interpretation of the statute"). Here, Congress must be presumed to have endorsed interpretation established in Quirin and Yamashita of the terms now codified in section 821. That conclusion is further buttressed in this case because the legislative history of the UCMJ indicates that the "language of [Article] 15 has been preserved" in 10 U.S.C. § 821 precisely "because it has been construed by the Supreme Court. See Ex parte Quirin, 317 U.S. I (1942)." Uniform Code of Military Justice: Text, References and Commentary based on the Report of the Committee on a Uniform Code of Military Justice to the Secretary of Defense ("Morgan Draft") (1950), reprinted in 2 Index and Legislative History to the Uniform Code of Military Justice, 1950, at 1367 (1985).

6. See also The Examination No. 1 (Dec. 17, 1801), reprinted in 25 The Papers of Alexander Hamilton 444, 455 (Harold C. Syren et al. eds, 1977) ("[T]he Constitution of a particular country may limit the Organ charged with the direction of the public force, in the use or application of that force, even in time of actual war but nothing short of the strongest negative words, of the most express prohibitions, can be admitted to restrain that Organ from so employing it. as to derive the fruits of actual victory, by making prisoners of the persons and detaining the property of a vanquished enemy. Our Constitution happily is not chargeable with so great an absurdity. The framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience [sic).").

7. See also Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 326(1984) ("the decision not to prosecute an individual may not be controlled [by Congress] because it is fundamental to the Executive's prerogative"); id. at 142 ("If the President is to preserve, protect, and defend the Constitution, if he is faithfully to execute the laws, there may come a time when it is necessary for him . to refuse to prosecute those who assist him in the exercise of his duty... . To seek criminal punishment for those who have acted to aid the President's performance of his duty would be ... inconsistent with the Constitution.-).

8. But see Madsen, 343 U.S. at 34849 (stating in dicta that "[t]he policy of Congress to refrain from legislating in this ... area does not imply its lack of power to legislate"). In fact, members of Congress have explicitly acknowledged the President's plenary constitutional power as Commander in Chief to deal with prisoners of war. In 1865, the Senate debated a resolution merely urging - without requiring - President Lincoln to retaliate against captured Confederate soldiers in an effort to secure better treatment for Union soldiers then held by the South. The resolution expressly disclaimed that "Congress do[es] not ... intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion." Cong. Globe, 38th Cong., 2d sess. 364 (1865) (statement of Sen. Wade).

9. The records of the Philadelphia Constitutional Convention make clear that the delegates treated this entire provision as a unit. See, e.g., 2. The Records of the Federal Convention of 1787 at 315-16 (Max Farrand ed., rev. ed 1966) (1911) (proceedings of Aug. 17, 1787); id. at 614-15 (Sep. 14, 1787).

10. See, e.g., Boos v. Barry, 485 U.S. 312,316,323-24(1988) (Congress authorized under Define and Punish Clause to enact laws protecting foreign officers and governments); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 436 (1989) (Congress authorized under Define and Punish Clause to enact Foreign Sovereign Immunities Act); United States v. Arjona, 120 U.S. 479, 483-84 (1887) (Congress authorized under Define and Punish Clause to criminalize counterfeiting of foreign currency).

11. Similarly, the Supreme Court has declined to include the Define and Punish Clause as among Congress's war powers on a number of occasions. See Eisentrager, 339 U.S. at 788 (listing Congress's Article I war powers without mentioning Define and Punish Clause); Stewart v. Kahn, 78 U.S. (I I Wall.) 493, 506 (1870) (same); New York Times Co. v. United States, 403 U.S. 713, 727 & n. I (1971) (Stewart, l., concurring) (noting the Executive's "largely unchecked" war power, notwithstanding list of various war powers enumerated in Article I, without mentioning Define and Punish Clause); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 212 & n. 15 (1963) (Stewart, J., dissenting on other grounds) (noting that "the Framers expressly conferred upon Congress a compendium of powers which have come to be called the 'war power,"' and listing a number of Article I war powers, without mentioning Define and Punish Clause); Yakus v. United States, 321 U.S. 414, 459 (1944) (Roberts, 1., dissenting) (describing "the 'War Power' of Congress ... [as] the powers embodied in Article 1, § 8, of the Constitution" without mentioning Define and Punish Clause).

12. The proposed legislation here does not rely on this clause as a source of authority, and with good reason. This provision refers solely to rules for the regulation of the forces of the United States. The military commissions being considered, however, would be designed to try and punish enemy belligerents.
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:22 pm

MEMO __

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

June 8, 2002

MEMORANDUM

TO: THE ATTORNEY GENERAL

THROUGH: THE DEPUTY ATTORNEY GENERAL

FROM: JAY S. BYBEE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL

SUBJECT: DETERMINATION OF ENEMY BELLIGERENCY AND MILITARY DETENTION

You have asked our opinion whether you should recommend to the Secretary' of Defense that Jose Padilla. aka "Abdullah Al Muhair," qualifies as an enemy combatant under the laws of armed conflict, and whether he may be detained by the United States Armed Forces. Based on the facts provided to us by the Criminal Division, [1] we conclude that the military has the legal authority to detain him as a prisoner captured during an international armed conflict Additionally, we conclude that the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), poses no bar to the military's operations in detaining Padilla.

The facts provided to us show that Padilla, who is a U.S. citizen, is associated with al Qaeda, the terrorist organization that launched the attacks of September 11, 2001, and that he recently entered the United States as part of plot to commit acts of sabotage that might have resulted in massive loss of life. We conclude that Padilla is properly considered an enemy combatant and may be turned over to military authorities for detention as an unlawful enemy combatant.

I.

We note at the outset that the authority of the President as Commander in Chief to seize and detain enemy combatants in an armed conflict is settled beyond peradventure. As Chief Executive of the Nation and the "Commander in Chief of the Army and Navy of the United States," U S. Const., Art. II, section 2. the President has full authority to direct the armed forces to seize enemy forces in an armed conflict and detain them until the end of any armed conflict. See generally Memorandum for William J. Haynes II, General Counsel of the Department of Defense, from Jay S Bybee, Assistant Attorney General, Office of Legal Counsel, Re: The President's power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations (Mar. 13, 2002) ("OLC Transfer Memorandum"). The authority of a belligerent to seize enemy forces is long-settled under the laws and customs of war, see. e.g., L. Oppenheim. International Law 368-69 (H. Lauterpacht ed , 7th ed. 1952), and has been reflected in international conventions on the law of armed conflict since some of the very first codifications were produced, see, e.g. Geneva Convention Relative to the Treatment of Prisoners of War, Aug 12, 1949, 6 U.S.T. 3316 ("GPW"); Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Annex I arts. 4-20. As the Supreme Court explained in Ex parte Quirin, 317 U.S. 1, 31 (1942), "[l]awful combatants are subject to capture and detention as prisoners of war by opposing military forces" and "[u]nlawful combatants are likewise subject to capture and detention."

This authority to seize enemy combatants has been exercised in conflicts throughout the history of the Nation, from the time of the Founding to the present. See generally Lt. Col. George G Lewis & Capt. John Mewha, History of Prisoner of War Utilization by the United Slates Army 1776-1945, Dep't of the Army Pamphlet No. 20-213 (1955); see also Case of Jefferson Davis, 11 U.S. Op. Att'y Gen. 411, 411 (1866) (stating that Jefferson Davis and others "have been heretofore and are yet held as prisoners of war" and that "[u]ntil peace shall come in fact and in law, they can rightfully be held as prisoners of war"). Indeed, early in the Nation's history it was determined that the President could direct the capture of those in the service of an enemy whenever the United States was engaged in hostilities - even without a declaration of war, see 1 Op. Att'y Gen. 84, 85 (1798) (explaining that a person acting with a commission from France during the Quasi-War should be "confined as a prisoner of war"), and that authority has been routinely exercised ever since, most recently in conflicts such as Korea, Vietnam, and the Gulf War. See generally OLC Transfer Memorandum.

In addition, we note that it is well established that the United States is currently in a state of armed conflict to which the laws of armed conflict apply. In response to the attacks of September 11,Congress passed S.J. Res. 23, which authorizes the President to use military force against the "nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or [that] harbored such organizations or persons." Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). The President, acting under his authority as Commander in Chief, and with congressional support, dispatched the armed forces of the United States to Afghanistan to seek out and subdue the al Qaeda terrorist network and the Taliban regime that had supported and protected it. and our armed forces are still engaged in hostilities in Afghanistan Moreover, in issuing the Military Order of November 13, 2001 that provides for the creation of military commissions, the President expressly concluded that "[international terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces." Military Order, The Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001) This Office has also previously concluded that the United States is in a state of armed conflict with the al Qaeda terrorist network and with the Taliban. See, e.g.. Memorandum from Patrick F Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Legality of the Use of Military Commissions To Try-Terrorists, Nov. 6, 2001, at 22-33 ("Military Commission Memorandum"), Memorandum to Alberto Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General. Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002).

The facts provided to us establish that Padilla is properly considered an enemy combatant. The facts show that he recently entered the United States as part of a plan to conduct acts of sabotage that could result in a massive loss of life. Specifically, Padilla was traveling to the United States from Pakistan, and while abroad he had meetings with a senior al Qaeda operative with whom he discussed a plan to detonate a radiological explosive device in the United States Padilla apparently has already conducted research into the construction of such a weapon and had considered ways with which to obtain the necessary nuclear material. He had received training, at the direction of a senior al Qaeda official, in the use of explosives. It is well settled under the laws of war that such saboteurs are combatants who may be seized and detained; indeed, they are unlawful enemy combatants. See, e.g.. Ex parte Quirin, 317 U.S. at 35-37 ("Those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants . . . .").

Padilla entered the country without any weapons or materials for the planned bomb. because it appears that he was engaged in preliminary reconnaissance at the direction of al Qaeda officials That is irrelevant, however, to the determination of his status as an enemy combatant He entered the United States in furtherance of the plan to later deploy a radiological explosive. Even if Padilla's immediate purpose upon this visit was only reconnaissance or gathering information, he still qualifies as an enemy combatant subject to seizure and detention Under the laws of war, it is well settled that scouts or other members of enemy forces whose only purpose is gathering information may be seized and detained. Moreover, as the Supreme Court explained in Quirin, persons are "not any the less belligerents if. . . they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations." 317 U.S. at 38. Because Padilla entered the United States in furtherance of a plan to commit sabotage, the mere fact that he did not succeed (or was not so close to consummating the plan that he would have weapons material with him) does not alter his status as a combatant subject to seizure.

II

The only difficulty presented by this case arises from the fact that Padilla is a U.S. citizen who was seized in the United States He was detained upon his entry into the United States at Chicago's 0"Hare International Airport. This fact scenario thus implicates the limitations on applying the laws of war to U.S. citizens that the Supreme Court set out in Ex parte Milligan, 71 U.S. 2(1866), and Ex parte Quirin, 317 U.S. 1 (1942).

In Ex Parte Milligan, Union forces in the state of Indiana had seized a civilian named Milligan and tried him by military commission on various charges including giving aid and comfort to the enemy conspiring to seize weapons in federal arsenals, and planning to liberate Confederate prisoners of war. Milligan was a U.S. citizen and resident of Indiana He had not, however, ever been a resident of one of the Confederate states, nor had he crossed into enemy territory, nor been a member of the military of the United States nor, it appears, of the Confederacy. It is unclear from the case whether Milligan actually ever communicated with members of the Confederate government or armed forces.

The Supreme Court held that Milligan could not be constitutionally subjected to trial by military commission. It found that the military could not apply the laws of war to citizens in states in which no direct military threat exists and the courts are open. It is worth quoting the relevant passage

[the laws of war] can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service.


71 U.S. at 121-22 Thus, the Court made clear that the military could not extend its authority to try violators of the laws of war to citizens well behind the lines who are not participating in the military service.

Milligan left open, however, whether the laws of war could apply to a person who was more directly associated with the forces of the enemy, and hence could be detained as a prisoner captured during war. [2] The government argued that Milligan was such a prisoner of war. The Court, however, rejected that claim because Milligan had not committed any "legal acts of hostilities against the government," but instead had "conspired with bad men to assist the enemy." As the Court explained:

But it is insisted that Milligan was a prisoner of war, and, therefore, excluded from the privileges of the statute [of habeas corpus] It is not easy to see how he can be treated as a prisoner of war. when he lived in Indiana for the past twenty years, was arrested there. and had not been, during the late troubles [i.e., the Civil War], a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?


Id. at 131. [3] Thus, the Supreme Court concluded that Milligan could not be held as a prisoner of war because his actions were not sufficient "acts of hostility" to place him within the category of enemy belligerents.

In Ex parte Quirin, the Court clarified and restricted the scope of its holding in Milligan. In Quirin, several members of the German armed forces who had covertly entered the United States with the objective of committing acts of sabotage were seized and ultimately tried by military commission. The FBI captured the saboteurs within the United States after they had hidden their uniforms and infiltrated into New York and Chicago. The Supreme Court concluded that they were properly held by the military and tried by military commission even though one of the defendants (Haupt) was allegedly a citizen, their plans occurred behind the front lines within states unthreatened by war, and the courts within the United States were operating openly.

The Court found that Milligan does not apply to enemy belligerents captured within the United States See Military Commissions Memorandum at 14-16. The status of the saboteurs in Quirin as enemy belligerents, rather than non-belligerent civilians, was easily determined due to their training in the German Reich, their membership in its Marine Infantry, their transportation by German submarine, and their initial dress in German uniforms. The Court expressly distinguished Milligan on the basis that Milligan had been a civilian, and not an enemy belligerent. From the facts of Milligan. "the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as—in circumstances found not there to be present and not involved here—martial law might be constitutionally established." 317 U.S. at 45 (emphasis added). Because the Nazi saboteurs were belligerents, the Quirin Court found that Milligan did not apply.

Indeed, the Court made clear that status as a citizen would not allow one who had the status of a belligerent to escape military jurisdiction, even if he were captured within the United States. As the Court declared, "[citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war " Id at 37 The Court continued: "[citizens who associate themselves with the military arm of the enemy government, and with its aid. guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." Id. at 37-38.

In discussing the fact that the German saboteurs also fell into the category of unlawful combatants, the Court explained why a mission of sabotage within the United States qualified as acts of belligerency According to the Court:

[E]ntry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. [The rules of land warfare] plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States.


317 U.S. at 36-37. Thus, the Court found that capture of the defendants away from the front did not alter the status of the German saboteurs as enemy belligerents. Instead, the Court found that enemy belligerents who sought to commit sabotage remained subject to military jurisdiction, even if captured in areas of the United States free from threat of direct enemy attack.

Moreover, the Court explained that the fact that the German saboteurs had only entered the country and had not yet implemented their destructive plans did not alter their status as belligerents As the Court observed, "[n]or are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations." Id. at 38. Indeed, an opposite result would be absurd. It would allow the government to apply the laws of war to those captured outside the United States, while requiring the government to provide enemies who attack the nation directly with the higher standards of treatment required for those accused under the federal criminal laws.

Thus, Quirin made clear the limitations on Milligan. Milligan found that non-belligerent civilians behind the lines, where martial law is not declared and the courts are open, could not be subject to treatment as combatants subject to seizure by the military under the laws of war. Quirin makes clear that Milligan does not apply to enemy belligerents, even if those belligerents are citizens and are captured within the United States outside any theatre of active operations.

The facts in this case are not squarely on all fours with either Milligan or Quirin. Unlike the circumstances of Quirin, the nation's current enemy is not a traditional nation-state with a uniformed, regular armed force. Instead, the nation is at war with an international terrorist organization, whose members have entered the nation covertly and have infiltrated our society in sleeper cells. As demonstrated by the attacks on September 11, al Qaeda members seek to attack American civilian targets without any military value, rather than conduct conventional military campaigns We conclude, however, that the instant case is far closer to the scenario presented in Quirin than Milligan. Under the reasoning in Quirin, Padilla properly qualifies as a belligerent (or combatant) who may be seized by the military and held at least until the end of the conflict. The nature of Padilla's plan in itself qualifies him as a belligerent. The detonation of a radiological bomb could result in massive loss of life. Moreover, the mere fact that Padilla is still apparently in the planning stages for this act and may only have entered the United States now for reconnaissance purposes in no way takes him out of the category of a combatant.

Finally, in Milligan, the Court emphasized that Milligan had always been a resident of Indiana and it appeared that he had never been within Confederate territory, nor was it clearly-alleged that he had ever actually communicated with the enemy. In some ways, therefore, he appeared to be an enemy sympathizer, but could not really be said to be part of the enemy forces Here, in contrast, Padilla has recently been in Pakistan and has been in direct communication with a top al Qaeda leader concerning his plan to detonate a radiological bomb and other missions That clear evidence shows that Padilla entered the United States as part of a plan of destruction sponsored and supported by enemy forces further confirms his status as an enemy combatant.

III.

As we have previously advised elsewhere, the Posse Comitatus Act (PCA) does not limit the President's authority to deploy the military against international terrorists operating within the United States. See generally Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel. Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 2-3 (Oct. 23, 2001). For the reasons explained there, and summarized here, we similarly conclude that the PCA does not impose a statutory prohibition on the use of the military to detain an international terrorist captured within the United States.

The PCA states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, orboth.


18U.S.C. § 13S5. [4] There are several reasons why the detention of Padilla by the military would not violate the PCA.

First, both the express language of the PCA and its history show clearly that it was intended to prevent the use of the military for domestic law enforcement purposes. It does not address the deployment of troops for domestic military operations against potential attacks on the United States. Both the Justice Department and the Defense Department have accordingly interpreted the PCA not to bar military deployments that pursue a military or foreign policy function. In Application of the Posse Comitatus Act to Assistance to the United States National Central Bureau, 13 Op. O.L.C. 195 (1989), our Office cited and agreed with a Department of Defense regulation that interpreted the PCA not to bar military actions undertaken primarily for a military purpose. We said (id at 197):

[T]he regulations provide that actions taken for the primary purpose of Furthering a military or foreign affairs function of the United States are permitted. 3C.F.R. § 213.10(a)(2)(i). We agree that the Posse Comitatus Act does not prohibit military involvement in actions that are primarily military or foreign affairs related, even if they have an incidental effect on law enforcement, provided that such actions are not undertaken for the purpose of executing the laws. [5]

Because using military force to combat terrorist attacks would be for the purpose of protecting the nation's security, rather than executing the laws, domestic deployment in the current situation would not violate the PCA.

Central to this conclusion is the nature of the current conflict and the facts of this specific case. As we have advised elsewhere, the September 11. 2001 attacks on the World Trade Center and the Pentagon began an international armed conflict between the United States and the al Qaeda terrorist organization. See generally Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001); Military Commissions Memorandum As a consequence of those operations, the armed forces have captured al Qaeda members as enemy combatants. As we have discussed above, capture and detention of enemy combatants is a critical part of international armed conflict, as demonstrated by the fact that the laws of armed conflict have long regulated the treatment of prisoners of war.

Here, the detention of Padilla by the military is part of that international armed conflict The President has ample authority as Commander-in-Chief and Chief Executive to employ the military to protect the nation from further attack and to conduct operations against al Qaeda both at home and abroad. Detaining al Qaeda operatives who attempt to enter the United States to attack military or civilian targets is part of our ongoing military operations in this international armed conflict As a result, detention of Padilla is not law enforcement, but instead constitutes military operations to protect the national security exempted from the PCA.

Second, the PCA includes both a constitutional and a statutory exception. It excludes military actions taken "in cases and under circumstances expressly authorized by the Constitution or Act of Congress." Both of these exceptions apply to the use of the Armed Forces to detain al Qaeda operatives in response to the September 11 attacks. By its own terms, the PCA excludes from its coverage any use of the military for constitutional purposes. As Attorney General Brownell noted in reviewing the PCA's legislative history, "[t]here are in any event grave doubts as to the authority of the Congress to limit the constitutional powers of the President to enforce the laws and preserve the peace under circumstances which he deems appropriate." President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders - Little Rock. Arkansas, 41 Op. Att'y Gen. 313, 331 (1957). Thus, the dispositive question is whether the President is deploying troops pursuant to a plenary constitutional authority. Here, that is clearly the case. The President is deploying the military pursuant to his powers as Chief Executive and Commander in Chief in response to a direct attack on the United States. Detention of al Qaeda operatives within the United States is undertaken pursuant to this constitutional authority. Thus, the PCA by its own terms does not apply to the domestic use of the military as contemplated in this case.

Even if the PCA's constitutional exception were not triggered, Pub. L. No. 107-40 would allow the President to avoid application of the PCA in this case. Pub. L. No. 107-40 authorizes "the use of United States Armed Forces against those responsible for the recent attacks launched against the United States." This authorization does not distinguish between deployment of the military either at home or abroad, nor does it make any distinction between use of the Armed Force for law enforcement or for military purposes Rather, it simply authorizes the use of force against terrorists linked to the September 11 attacks. It is clear that the al Qaeda terrorist organization is one of the groups responsible for the September 11 attacks on the United States Detention of al Qaeda operatives within the United States is part of the military use of force against those linked to the September 11 attacks. Thus. Pub. L. No. 107-40 provides the statutory authorization envisioned by the PCA's drafters to allow the use of the military domestically, whether for law enforcement purposes or not.

Conclusion

We believe that you have ample grounds to recommend to the Secretary of Defense that Jose Padilla qualifies as an enemy combatant under the laws of armed conflict, and that he may be detained as a prisoner by the U.S. Armed Forces. The Posse Comitatus Act presents no statutory bar to the transfer of Padilla to the Department of Defense.

Please do not hesitate to contact us if we can provide any further assistance.

_______________

Notes:

1. See Memorandum for Jay S. Bybee. Assistant Attorney General. Office of Legal Counsel, from Michael Chertoff Assistant Attorney General. Criminal Division. Re: JOSE PADILLA, aka "Abdullah Al Muhajir'' (June 7. 2002).

In fact, even when the United States is not itself involved in an armed conflict, in order to preserve the United States' position as a neutral power with respect to an armed conflict being waged between other belligerents, the President may direct the armed forces to capture and detain combatants from another nation who seek refuge in U.S. territory. See, e.g.. Ex parte Toscano, 208 F 938, 940 (S.D. Cal. 1913) (rejecting petition for habeas corpus filed by Mexican soldiers so captured and interned during civil war in Mexico). Such combatants may be seized and, without being charged with any violation of law, interned for the duration of the conflict See id.

2. We are using prisoner of war here not in the Geneva Convention sense, but only as it refers to individuals who can be legitimately detained under the customary laws of war.

3. The end of this passage might be read to suggest that the government may apply the laws of war only to lawful combatants That is plainly incorrect, as the Supreme Court itself explained in Ex Parte Quirin: "Unlawful combatants are likewise subject to capture and detention, but in addition the are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." 317 U.S. at 31.

4. The PCA originated as the Act of June 18, 1878, ch. 263, § 15, 20 Stat 145. 152. It was amended in 1956 to cover the Air Force. Act of Aug. 10, 1956, § 18(a),70A Stat. 626; see United States v. Walden, 490 F.2d 372, 375 n.5 (4th Cir.), cert, denied, 416 U.S. 983 (1974). The contemporary version of the PCA differs only slightly from the original.

5. Accord United States v. Thompson, 30 M.J. 570, 573 (A.F.C.M.R.) (The prohibitions contained in the Posse Comitatus Act... do not now, nor were they ever intended to, limit military activities whoseprimary purpose is the furtherance of a military (or foreign affairs) function, regardless of benefits which may incidentally accrue to civilian law enforcement), affd, 32 M.J. 5 (CM.A. 1990), cert, denied, 502 U.S. 1074 (1992).

Department of Defense ("DoD") regulations promulgated pursuant to a congressional directive in 10 U.S.C. § 375 also recognize that the PCA does not apply to or restrict "actions that are taken for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities." DoD Directive 5525.5. Enclosure 4. E4.1.2.1 (Jan. 15. 1996(as amended Dec. 20, 19S9). See generally United States v. Hitchcock, No. 00-10251 (D. Haw. 2001) at *4-*5 (reviewing and applying DoD Directive 5525.5). Several courts (including the court of appeals in Hitchcock) have accepted and applied the DoD Directive in a variety of circumstances to find that the use of the military was not in violation of the PCA or 10 U.S.C. § 375. See, e.g., United States v. Chon, 210 F.3d 990. 993 (9th Cir.) (activities of Navy Criminal Investigative Service "were permissible because there was an independent military purpose for their investigation -the protection of military equipment"), cert. denied,531 U.S. 910 (2000): Applewhite v. United States Air Force, 995 F.2d 997. 1001 (10th Cir. 1993) (military may investigate illegal drug transactions by active duty military personnel), cert, denied,510 U.S. 1190 (1994).
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:25 pm

MEMO __

U.S. Department of Justice
Office of Legal Counsel

Office of the Deputy Assistant Attorney General
Washington, D.C. 20530

June 27, 2002

Memorandum for Daniel J. Bryant
Assistant Attorney General, Office of Legislative Affairs

Re: Applicability of 18 U.S C. § 4001(a) to Military Detention of United States Citizens

You have asked us whether the detention of United States citizens as enemy belligerents by the U.S. Armed Forces violates 18 U.S.C. § 4001(a) (2000). We understand that the question has arisen in briefings before the Senate Judiciary Committee and the Senate Select Committee on Intelligence concerning the recent transfer of Jose Padilla, aka Abdullah a] Mujahir, from the custody of the Department of Justice to the control of the Department of Defense.

Section 4001 of Title 18 states:

(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

(b) (1) The control and management of Federal penal and correctional institutions, except military and naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended and the applicable regulations.

(2) The Attorney General may establish and conduct industries, farms, and other activities and classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation.


18 U.S.C. § 4001.

As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.

I.

In order to understand the scope of section 4001(a), we first set out the proper context established by the President's authority to detain enemy combatants during war. That authority arises out of the President's constitutional status as Commander in Chief. Under the Commander in Chief Clause, the President is authorized to detain all enemy combatants, including U.S. citizens. Finally, we note that Congress has specifically authorized the President to use force against enemy combatants in response to the terrorist attack of September 11.

A.

Article 11 of the Constitution vests the entirety of the "executive power" of the United States government "in a President of the United States of America," and expressly provides that "[t]he President shall be Commander in Chief of the Army and Navy of the United States." U.S. Const. art. II, § 1, c1. 1; id., § 2, cl. 1. Because both "[t]he executive power and the command of the military and naval forces is vested in the President," the Supreme Court has unanimously stated that it is "the President alone [] who is constitutionally invested with the entire charge of hostile operations." Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (emphasis added). As Commander in Chief, the President possesses the full powers necessary to prosecute successfully a military campaign. As the Supreme Court has recognized, "[t)he first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution." Johnson v. Eisentrager, 339 U.S. 763, 788 (1950) (citation omitted).

By their terms, these provisions vest full control of the military operations of the United States in the President. It has long been the view of this Office that the Commander in Chief Clause is a substantive grant of authority to the President, see. e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970); Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sep. 25, 2001). This authority includes all those powers not expressly delegated by the Constitution to Congress that have traditionally been exercised by commanders in chief of armed forces. See, e.g., Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: The President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (March 13, 2002).

One of the core functions of the Commander in Chief is that of capturing and detaining members of the enemy. See id. at 3 ("the Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts"). It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict.1 Numerous Presidents, for example, have ordered the capture and detention of enemy combatants during virtually every major conflict in the Nation's history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress never has attempted to restrict or interfere with the President's authority on this score. It is obvious that the current President plainly has authority to detain enemy combatants in connection with the present conflict, just as he has in every previous armed conflict.

The Supreme Court has also recognized the President's authority as Commander in Chief to order to capture and detention of enemy belligerents. For example, in Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court unanimously stated as follows:

By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.


Id. at 30-31 (emphasis added and footnotes omitted). See also id. at 31 n.8 (citing authorities); Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946); In re Territo, 156 F.2d 142, 145 (9th Cir. 1946); Ex parte Toscano, 208 F. 938, 940 (S.D. Cal. 1913); L. Oppenheim, International Law 368-69 (H. Lauterpacht ed., 7th ed. 1952).

We should emphasize here that military detention of enemy combatants serves a particular goal, one that is wholly distinct from that of detention of civilians for ordinary law enforcement purposes. The purpose of law enforcement detention is punitive: to punish individuals, to collect evidence establishing that a crime may have been committed, to ensure that an individual will appear at a criminal trial, or for other related purposes. The purpose of military detention, by contrast, is exclusively preventive. See, e.g., In re Territo, 156 F.2d 142, 145 (9th Cir. 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on he must be removed as completely as practicable from the front."); Ex parte Toscano, 208 F. 938, 941 (S.D. Cal. 1913) ("Internment is not a punishment for crime. [b ]elligerent troops are disarmed as soon as they cross the neutral frontier, and detained in honorable confinement until the end of the war.") (quotations omitted). As Commander in Chief, the President may order the detention of enemy combatants in order to prevent the individual from engaging in further hostilities against the United States, to deprive the enemy of that individual's service, and to collect information helpful to the United States' efforts to prosecute the armed conflict successfully. See Quirin, 317 U.S. at 28 ("An important incident to the conduct of war is the adoption of measures by the military command ... to seize... those enemies who ... attempt to thwart or impede our military effort"). While enemy combatants also may be subject to criminal prosecution under United States or international law, see id. at 28-29 (President's war power to detain enemy combatants includes power to "subject to disciplinary measures those enemies who have violated the law of war"), evidence of criminal liability is legally unnecessary in order for the U.S. Armed Forces to detain an enemy combatant.

B.

It is also settled that the President's authority to detain an enemy combatant is not diminished by a claim, or even a showing, of American citizenship. See, e.g., id. at 37 ("Citizenship in the United States of an enemy belligerent does not relieve him from the consequence of a belligerency which is unlawful."); In re Territo, 156 F.2d at 144 ("[I]t is
immaterial to the legality of petitioner's detention as a prisoner of war by American military authorities whether petitioner is or is not a citizen of the United States of America."); Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956), cert. denied 352 U.S. 1014 (1957) ("[T]he petitioner's citizenship in the United States does not ... confer upon him any constitutional rights not accorded any other belligerent under the laws of war.").

The fact that a detainee is an American citizen, thus, does not affect the President's constitutional authority as Commander in Chief to detain him, once it has been determined that he is an enemy combatant. As the Supreme Court has unanimously held, all individuals, regardless of citizenship, who "associate" themselves with the "military arm of the enemy" and "with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." 317 U.S. at 37-38. Nothing further need be demonstrated to justify their detention as enemy combatants. The individuals need not be caught while engaged in the act of war or captured within the theatre of war. See id. at 38 ("Nor are petitioners any the less belligerents if ... they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations."). They need not be found carrying weapons. See id. at 37 ("It is without significance that petitioners were not alleged to have borne conventional weapons ... ."). Nor must their acts be targeted at our military. See id. ("It is without significance that ... their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. [The rules of land warfare] plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States."). Accordingly, all "those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants ... ." Id. at 35.

For example, in Quirin, several members of the German armed forces who had covertly entered the United States with the objective of committing acts of sabotage were seized and ultimately tried by military commission. The FBI captured the saboteurs within the United States after they had hidden their uniforms and infiltrated into New York and Chicago. The Supreme Court concluded that they were properly held by the military and tried by military commission even though one of the defendants (Haupt) was allegedly a citizen, their plans occurred behind the front lines within states unthreatened by war, and the courts within the United States were operating openly.

Ex parte Milligan, 71 U.S. 2 (1866), does not affect this conclusion. In Milligan, Union forces in the state of Indiana had seized a civilian named Milligan and tried him by military commission on various charges including giving aid and comfort to the enemy, conspiring to seize weapons in federal arsenals, and planning to liberate Confederate prisoners of war.

Milligan was a U.S. citizen and resident of Indiana. He had not, however, ever been a resident of one of the Confederate states, nor had he crossed into enemy territory, nor been a member of the military of the United States, nor, it appears, of the Confederacy. It is unclear from the case whether Milligan actually ever communicated with members of the Confederate government or armed forces.

The Supreme Court held that Milligan could not be constitutionally subjected to trial by military commission. It found that the military could not apply the laws of war to citizens in states in which no direct military threat exists and the courts are open. It is worth quoting the relevant passage:

[the laws of war] can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service.


71 U.S. at 121-22. Thus, the Court made clear that the military could not extend its authority to try violators of the laws of war to citizens well behind the lines who are not participating in the military service.

Milligan left open, however, whether the laws of war could apply to a person who was more directly associated with the forces of the enemy, and hence could be detained as a prisoner captured during war. The government argued that Milligan was such a prisoner of war. The Court, however, rejected that claim because Milligan had not committed any "legal acts of hostilities against the government," but instead had "conspired with bad men to assist the enemy." As the Court explained:

But it is insisted that Milligan was a prisoner of war, and, therefore, excluded from the privileges of the statute [of habeas corpus]. It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles [i.e., the Civil War], a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?


Id. at 131.2 Thus, the Supreme Court concluded that Milligan could not be held as a prisoner of war because his actions were not sufficient "acts of hostility" to place him within the category of enemy belligerents.

In Quirin, the Court clarified and restricted the scope of its earlier holding in Milligan. The Court found that Milligan does not apply to enemy belligerents captured within the United States. The status of the saboteurs in Quirin as enemy belligerents, rather than non-belligerent civilians, was easily determined due to their training in the German Reich, their membership in its Marine Infantry, their transportation by German submarine, and their initial dress in German uniforms. The Court expressly distinguished Milligan on the basis that Milligan had been a civilian, and not an enemy belligerent. From the facts of Milligan, "the Court concluded that Milligan, not being a part of or associated with the armed forces of th4 enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established." 317 U.S. at 45 (emphasis added). In some ways, Milligan appeared to be an enemy sympathizer, but he could not really be said to be part of the enemy forces. Because the Nazi saboteurs were belligerents, by contrast, the Quirin Court found that Milligan did not apply.

We accordingly conclude that, under Milligan and Quirin, the President's constitutional authority as Commander in Chief to detain enemy combatants extends to U.S. citizens and noncitizens alike.

C.

Finally, we note that the President's constitutional authority to detain enemy combatants during the present conflict is bolstered by Senate Joint Resolution 23, which went into effect on September 18, 2001. That resolution recognizes that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Authorization for Use of Military Force, Pub. L. No. 107-40, preamble, 115 Stat. 224 (2001). Additionally, the resolution explicitly authorizes "the President ... 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, 200], 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." Id., § 2(a). Thus, Congress has specifically endorsed the use not only of deadly force, but also of the lesser- included authority to detain enemy combatants to prevent them from furthering hostilities against the United States.

II.

Section 4001(a) cannot be read to interfere with the President's constitutional authority as Commander in Chief to detain enemy combatants. When examined in the context of section 4001 and of the U.S. Code as a whole, it becomes apparent that subsection (a) does not attempt to reach so broadly. In fact, the canon of construction that statutes be construed to avoid constitutional defects requires section 4001(a) to be given this reading.

To be sure, section 4001(a) uses broad language. It neither draws a distinction between differing types of detention nor mentions military detention for explicit inclusion or exclusion.3 It is important, however, to examine section 4001 in its entirety to understand the scope of subsection (a). See Kokoszka v. Belford, 417 U.S. 642, 650 (1974) ("When `interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute ... and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature.") (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857)).

Nothing in section 4001 indicates that its provisions were meant to reach the President's authority, as Commander in Chief, to detain enemy combatants. To the contrary, section 4001 addresses the Attorney General's authority with respect to the federal civilian prison system, rather than the President's constitutional power as Commander in Chief to detain enemy combatants. Congress specifically added subsection (a) to 18 U.S.C. § 4001 in 1971. Act of Sep. 25, 1971, Pub. L. No. 92-128, § 1, 85 Stat. 347 (adding new language to section 4001 of title 18). Prior to 1971, section 4001 simply gave the Attorney General the power to "control and manage[]" the federal civilian prison system. Act of June 25, 1948, ch. 645, § 4001, 62 Stat 683, 847. The earlier language was identical to subsection (b) as it is now. Then, as now, the plain terms of the provision specifically carve out "military or naval institutions" from the statute's coverage of "Federal penal and correctional institutions." Construing the scope of subsection (a) broadly to cover all types of detention is difficult to reconcile with its coupling with subsection (b). The better reading is that subsections (a) and (b) have the same scope, which is applies exclusively to the federal civilian prison system.

As a structural matter, the placement of section 4001(a) in the United States Code signifies that it was not intended to govern the detention of enemy combatants by the U.S. Armed Forces. Title 18 of the United States Code covers "Crime and Criminal Procedure." Statutes concerning the military and national security, by contrast, are generally found in Title 10 ("Armed Forces") and in Title 50 ("War and National Defense"). Moreover, the particular part of Title 18 in which section 4001 is located contains chapters governing exclusively federal criminal confinement. Part III of Title 18, which contains section 4001, is entitled "Prisons and Prisoners" and contains chapters relating to the Bureau of Prisons, good time allowances, parole, and institutions for women, among other topics. Nothing in those provisions can plausibly be construed to apply to the detention of enemy combatants. Congress's decision to place section 4001 (a) in this particular provision of the U.S. Code thus provides further support for our conclusion that subsection (a) does not apply to the President's constitutional power to detain enemy combatants. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, 1. concurring) ("The meaning of terms on the statute books ought to be determined ... on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind.").

Congress likewise has effectively construed section 4001(a) not to restrict the President's constitutional power as Commander in Chief to detain enemy combatants.

In 1984, thirteen years after the enactment of section 4001(a), Congress added section 956 to Title 10 of the U.S. Code, which specifically governs the U.S. Armed Forces. That statute explicitly authorizes the U.S. Armed Forces to use any funds appropriated to the Department of Defense to pay for the detention of prisoners of war and other enemy combatants. Specifically, 10 U.S.C. § 956 (2000) states that:

[f]unds appropriated to the Department of Defense may be used for ... expenses incident to the maintenance, pay, and allowances of prisoners of war, other persons in the custody of the Army, Navy, or Air Force whose status is determined by the Secretary concerned to be similar to prisoners of war, and persons detained in the custody of the Army, Navy, or Air Force pursuant to Presidential proclamation.


This provision plainly contemplates that the President has the power to detain prisoners of war and other enemy combatants, presumably as an exercise of his constitutional authority as Commander in Chief, notwithstanding the prior enactment of section 4001(a). The language of 10 U.S.C. § 956 is thus difficult to reconcile with section 4001(a) unless subsection (a) does not interfere with the President's constitutional power to detain enemy combatants. When it enacted 10 U.S.C. § 956, Congress must have understood that the President already had the authority to direct the U.S. Armed Forces to detain prisoners of war, and that the enactment of section 4001 (a) had done nothing to undermine that authority.

More recently, as discussed in Section I, last September Congress recognized that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States," and specifically authorized "the President ... 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, 200], 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." Pub. L. No. 107-40, preamble & § 2(a), 115 Stat. 224 (2001). Nothing in that resolution contemplates that the President's authority to detain enemy combatants is limited to non-U.S. citizens, or that section 4001(a) could be read to so limit that authority. If anything, the joint resolution provides further support to the President's existing constitutional authority to detain enemy combatants, even those who enjoy the status of citizens.4

We also note that no court has ever construed section 4001 (a) to apply to the detention of enemy belligerents in an armed conflict, or to restrict the President's constitutional authority to detain enemy combatants. See Howe v. Smith, 452 U.S. 473, 479 (1981) (noting "the authority of the Federal Government, in the official person of the Attorney General, to receive and to hold [state convicts subsequently transferred to] a federal penitentiary," (citing 18 U.S.C. §§ 4001(a) & 5003));5 see also Lono v. Fenton, 581 F.2d 645, 648 (7th Cir. 1978) (section 4001 (a) "forbid[s] non-statutory confinement in federal prisons"); Seller v. Ciccone, 530 F.2d 199, 201 (8th Cir. 1976) (section 4001 (b) vests Attorney General with "[t]he administration of the rehabilitative programs for federal prisoners"); Marchesani v. McCune, 531 F.2d 459, 461 (10th Cir. 1974) (section 4001 vests Attorney General with discretion to classify prisoners); Bono v. Saxbe, 462 F. Supp. 146, 148 (E.D. 111. 1978) (section 4001 authorizes Attorney General "to manage and control the federal prison system").

Our conclusion that section 4001(a) does not interfere with the President's constitutional authority as Commander in Chief is compelled by the well established canon of statutory construction that statutes are not to be construed in a manner that presents constitutional difficulties so long as a reasonable alternative construction is available. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501, 504 (1979)) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe [a) statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."). This canon of construction applies where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-1 (1992) (citation omitted) ("Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the [Administrative Procedure Act). We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion."); Public Citizen v. United States Dept of Justice, 491 U.S. 440, 465-67 (1989) (construing Federal Advisory Committee Act not to apply to advice given by American Bar Association to the President on judicial nominations, to avoid potential constitutional question regarding encroachment on Presidential power to appoint judges).

In the area of foreign affairs, and war powers in particular, the avoidance canon has special force. See, e.g., Dept of Navy v. Egan, 484 U.S. 518, 530 (1988) ("unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."); Japan Whaling Assn v. American Cetacean Soc'y, 478 U.S. 221, 232-33 (1986) (construing federal statutes to avoid curtailment of traditional presidential prerogatives in foreign affairs). We do not lightly assume that Congress has acted to interfere with the President's constitutionally superior position as Chief Executive and Commander in Chief in the areas of foreign affairs and national security, and the Supreme Court's consistent view that "`foreign policy [is] the province and responsibility of the Executive."' Egan, 484 U.S. at 529 (quoting Haig v. Agee, 453- U.S. 280, 293-94 (1981)). See also Agee, 453 U.S. at 291 (deference to Executive Branch is "especially" appropriate "in the areas of foreign policy and national security'). As the Court has repeatedly emphasized, the President's foreign affairs power necessarily exists independently of Congress: "In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation... [I]t is the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 320 (1936).

As we have already explained, the most reasonable construction of section 4001(a) is that it does not restrict the President's constitutional authority as Commander in Chief to detain U.S. citizens who are enemy combatants. Any other construction would raise serious constitutional questions. The President's power to detain enemy combatants, including U.S. citizens, arises out of his constitutional authority as Commander in Chief. As our office has consistently held during this Administration and previous Administrations, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander in Chief to control the conduct of military operations during the course of a campaign. See, e.g., Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Swift Justice Authorization Act (Apr. 8, 2002); Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sep. 25, 2001); Memorandum for Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Defense Authorization Act (Sep. 15, 1995). Congress may no more regulate the President's ability to detain enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe section 4001 (a) to avoid this constitutional difficulty, and conclude that subsection (a) does not apply to the President's detention of enemy combatants pursuant to his Commander in Chief authority.

A review of the legislative history of 18 U.S.C. § 4001(a) underscores our conclusion that Congress never intended that provision to restrict the President's constitutional authority as Commander in Chief to detain enemy combatants. While some in Congress questioned the law's scope as potentially infringing on the President's war powers, others assured members that the statute could not extend so far. At best, the legislative history demonstrates that Congress had no fully shared understanding that section 4001 either regulated the President's Commander in Chief authority or did not. The inconclusive nature of the legislative history, therefore, requires us to rely upon the scope of the President's war power, the structure of section 4001 and its placement in the U.S. Code, and the canon of avoidance.

First, the 1971 addition of section 4001(a) was accompanied by, and closely identified with, the repeal of the Emergency Detention Act of 1950, ch. 1024, 64 Stat. 1019, 1019-31, codified at 50 U.S.C. §§ 811-826, repealed by Pub. L. No. 92-128, 85 Stat. 347. That Act authorized the federal government exclusively to detain individuals suspected of violating certain criminal statutes. Specifically, it empowered the Attorney General to "to apprehend and by order detain . . each person as to whom there is [a] reasonable ground to believe that such person ... will engage in, or probably will conspire with others to engage in, acts of espionage or . sabotage." Id. at 1021.6 Espionage and sabotage were expressly defined in relation to particular sections of Title 18 of the United States Code. Id. In other words, the Act authorized detention of individuals based on suspected criminal conduct. Accordingly, we view the repeal of the 1950 Act, and the accompanying codification of section 4001 (a), to address similar forms of detention and not the detention of enemy combatants.

Second, an earlier version of the legislation enacting section 4001(a) suggests that the provision was not intended to reach the detention of enemy combatants. The original version of the House bill ultimately enacted, H.R. 234, did not include the language "except pursuant to an Act of Congress." 18 U.S.C. § 4001(a). Instead, it more broadly prohibited the detention of any U.S. citizen "except in conformity with the procedures and the provisions of title 18." H.R. Rep. No. 92-116 (1971), reprinted in 1971 U.S.C.C.A.N. 1435, 1437. A Department of Justice witness objected to the language on the ground that the drafters had incorrectly assumed that "all provisions for the detention of convicted persons are contained in title 18." Id. at 1437. The witness went on to list the numerous other federal statutes, outside of title 18, authorizing the confinement of persons convicted of federal crimes. See id. (citing, among others, provisions dealing with crimes involving narcotics in title 21, Internal Revenue violations in title 26, and crimes involving aircraft hijacking, carrying explosives aboard an aircraft and related crimes in title 49). The Committee accepted the witness's objection and recommended an amendment that changed the language to "except pursuant to an Act of Congress." Id. Notably, neither the witness nor any member of the Committee ever mentioned expanding the scope of the prohibition beyond detention related to criminal activity. Thus, the change in the legislation occurred in order to recognize other forms of detention of "convicted persons" under the federal criminal laws, and not the preventive detention of enemy combatants that occurs pursuant to the President's Commander in Chief authority.

Third, the House floor debate fails to demonstrate a universal, shared understanding of section 4001(a) as an effort to regulate or interfere with the President's Commander in Chief authority to detain enemy combatants. Over a two-day period in September, 1971, the House debated two competing bills: H.R. 234, reported out of the Judiciary Committee, which repealed the Emergency Detention Act and added section 4001(a), and H.R. 820, reported out of the Internal Security Committee, which acted to amend the Emergency Detention Act to prohibit its use "solely on account of race, color, or ancestry." 117 Cong. Rec. at 31754 (1971). The House floor debate reflected the presence of three distinct views of the legislation.

In the first camp, there was wide support for eliminating the possibility of any future use or creation of civilian detention camps. The internment of Japanese-Americans during World War II, without regard to their status as non-combatants, was frequently invoked by members of Congress to highlight the need for statutory action. Noting that the Emergency Detention Act was not in place during World War 11, proponents of H.R. 234 argued that a simple repeal of the Emergency Detention Act would not necessarily eliminate the possibility of future creation or use of detention camps. See 117 Cong. Rec. at 31541 (statement of Cong. Kastenmeier) ("It has been suggested that repeal alone would leave us where we were prior to 1950. The committee believes that imprisonment or other detention of citizens should be limited to situations in which a statutory authorization, an act of Congress, exists. This will assure that no detention camps can be established without at least the acquiescence of the Congress."). Such concern was the impetus for the addition of the language now found in 18 U.S.C. § 4001 (a). This view was not at odds with our interpretation of section 4001 (a), as the Japanese-Americans detained during World War II were not held as enemy combatants, and so any decision to prevent similar forms of detention in the future would not reach the President's Commander in Chief power on that score.

Members of the second camp, however, feared that the legislation went too far and violated the principle of separation of powers because it infringed upon the President's constitutional powers and duties. See 117 Cong. Rec. at 31542 (statement of Cong. Ichord) ("[The amendment] would deprive the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises. Hence the amendment also has the consequence of doing patent violence to the constitutional principle of separation of powers... . Although many Members of this House are committed to the repeal of the Emergency Detention Act of 1950, they have no purpose, I am sure, to confound the President in his exercise of his constitutional duties to defend this Nation, nor would they wish to render this country helpless in the face of its enemies."). These critics of the legislation appear to have suggested that the law's broad language could be read to interfere with the President's power to detain enemy combatants. We would note, however, that they did not offer this reading as an authoritative interpretation of the statute's meaning, but as an effort to narrow its scope.

Finally, then Congressman Abner Mikva, responding to both groups, stated that, while Congress indeed lacked the authority to interfere with the President's constitutional powers, H.R. 234 should not be interpreted to do so. He argued:

If there is any inherent power of the President of the United States, either as the Chief Executive or Commander in Chief, under the Constitution of the United States, to authorize the detention of any citizen of the United States, nothing in [H.R. 234] interferes with that power, because obviously no act of Congress can derogate the constitutional power of a President.


Id. at 31555. Moments later, Mikva elaborated on this point:

The next group of opinion would hold that the Federal Government does have certain emergency powers which can be exercised if necessary for self-preservation. Some in this group would give extensive latitude to the President to exercise such war powers, finding the justification in his [powers] as Commander in Chief of the Aimed Forces, as well as in his sworn duty to uphold the Constitution and to preserve the Republic. Once again, it is difficult to see how proponents of this view could consistently oppose H.R. 234 on the grounds that it would undercut the President's ability to act in an emergency. After all, if the President's war powers are inherent, he must have the right to exercise them without regard to congressional action. Arguably, any statute which impeded his ability to preserve and protect the Republic from imminent harm could be suspended from operation. It is a contradiction in terms to talk of Congress limiting or undercutting an inherent power given by the Constitution or some higher authority.

* * *

The conclusion to be drawn from all of this is that, historical and philosophical questions aside, the repeal of the Emergency Detention Act which is proposed in H.R. 234 would have no measurable effect on the war powers of the President, whatever those powers are deemed to be at present.


Id. at 31557.

This discussion demonstrates that there was no agreement in Congress that the law would reach enemy combatants, or that section 4001(a) could regulate the President's authority as Commander in Chief to detain such individuals. The legislative history of section 4001(a), therefore, cannot be read to undermine our conclusion, and the apparent conclusion of subsequent sessions of Congress, that subsection (a) does not apply to the detention of U.S. citizens held as enemy combatants by U.S. Armed Forces under the direction of the President in the exercise of his constitutional authority as Commander in Chief.

If I can be of further assistance, please let me know.

Sincerely,

John C. Yoo
Deputy Assistant Attorney General

_______________

Notes:

1. The practice of capturing and detaining enemy combatants is as old as war itself. See Allan Rosas, The Legal Status of Prisoners of War 44-45 (1976). In modem conflicts, the practice of detaining enemy combatants and hostile civilians generally has been designed to balance the humanitarian purpose of sparing lives with the military necessity of defeating the enemy on the battlefield. Id. at 59-80.

2. The end of this passage might be read to suggest that the government may apply the laws of war only to lawful combatants. That is plainly incorrect, as the Supreme Court itself explained in Quirin: "Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render then belligerency unlawful." 317 U.S. at 31.

3. Courts have found section 4001(a) to be judicially enforceable through the writ of habeas corpus. See, eg., Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978).

4. Last October the Congressional Research Service issued a report analyzing the power of the Executive Branch to detain individuals during the current conflict in the interest of national security. See Jennifer Elsea, Congressional Research Service, Race-based Civil Detention for Security Purposes, Order Code RS21039 (2001). That report specifically discusses 18 U.S.C. § 4001(a). It concludes that section 4001(a) was "intended to prevent the President from authorizing civil detention of citizens without an act of Congress." Id. at 3 (emphasis added). Notably, the report makes no mention of military detention of U.S. citizens who are enemy combatants, and does not even hint at the possibility that section 4001(a) has any application outside of ordinary civilian detention.

5. Under 18 U.S.C. § 5003(a) (2000), "[t]he Attorney General ... is ... authorized to contract with the proper officials of a State or Territory for the custody ... of persons convicted of criminal offenses in the courts of such State or Territory: Provided, That any such contract shall provide for reimbursing the United States." Howe, 452 U.S. at 475 n.1. In Howe, the Court held that section 5003(a) constituted sufficient statutory authority to authorize federal detention of state prisoners under section 4001(a). We note that there is loose language in Howe that might be mistakenly read to apply section 4001 (a) to the President's constitutional authority to detain enemy combatants. The Court noted that "the plain language of § 4001(a) proscrib[es] detention of any kind by the United States, absent a congressional grant of authority to detain. If the petitioner is correct that neither § 5003 nor any other Act of Congress authorizes his detention by federal authorities, his detention would be illegal even though that detention is on behalf, and at the pleasure, of the State of Vermont." Howe, 452 U.S. at 479 n.3. This passage simply states that § 4001(a) applies to the entire federal criminal prison system, regardless of how each federal prisoner was originally taken into custody. It does not address any other form of detention by the United States, such as detention of enemy combatants pursuant to the President's authority as Commander in Chief.

6. The Attorney General's authority was made available when the President proclaimed an emergency pursuant to one of three triggering events: invasion, declaration of war, and insurrection. The detainee was to be released by an order of release, or at the termination of the emergency by proclamation of the President or by concurrent resolution of the Congress. Orders of release could issue from the Attorney General, the Board of Detention Review (established by the Act), or a United States court, after reviewing the action of the Board of Detention Review or upon a writ of habeas corpus. The Act authorized the Attorney General to issue warrants for the apprehension of persons believed to fall within the statutory language.
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:31 pm

PART 1 OF 4

MEMO 14

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

August 1, 2002

MEMORANDUM FOR ALBERTO R. GONZALES COUNSEL TO THE PRESIDENT

RE: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A

You have asked for our Office's views regarding the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code. As we understand it, this question has arisen in the context of the conduct of interrogations outside of the United States. We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A's proscription against torture. We conclude by examining possible defenses that would negate any claim that certain interrogation methods violate the statute.

In Part I, we examine the criminal statute's text and history. We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual's personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute's definition to track the Convention's definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.

In Part II, we examine the text, ratification history, and negotiating history of the Torture Convention. We conclude that the treaty's text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for "cruel, inhuman, or degrading treatment or punishment." This confirms our view that the criminal statute penalizes only the most egregious conduct. Executive branch interpretations and representations to the Senate at the time of ratification further confirm that the treaty was intended to reach only the most extreme conduct.

In Part III, we analyze the jurisprudence of the Torture Victims Protection Act, 28 U.S.C. § 1350 note (2000), which provides civil remedies for torture victims, to predict the standards that courts might follow in determining what actions reach the threshold of torture in the criminal context. We conclude from these cases that courts are likely to take a totality-of-the-circumstances approach, and will look to an entire course of conduct, to determine whether certain acts will violate Section 2340A. Moreover, these cases demonstrate that most often torture involves cruel and extreme physical pain. In Part IV, we examine international decisions regarding the use of sensory deprivation techniques. These cases make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.

In Part V, we discuss whether Section 2340A may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief power's. We find that in the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President's authority to conduct war. In Part VI, we discuss defenses to an allegation that an interrogation method might violate the statute. We conclude that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.

I. 18 U.S.C. §§2340-2340A

Section 2340A makes it a criminal offense for any person "outside the United States [to] commit or attempt to commit torture." [1] Section 2340 defines the act of torture as an:

act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.


18 U.S.C.A. § 2340(1); see id. § 2340A. Thus, to convict a defendant of torture, the prosecution must establish that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990) ("For an act to be 'torture,' it must ... cause severe pain and suffering, and be intended to cause severe pain and suffering."). You have asked us to address only the elements of specific intent and the infliction of severe pain or suffering. As such, we have not addressed the elements of "outside the United States," "color of law," and "custody or control." [2] At your request, we would be happy to address these elements in a separate memorandum.

A. "Specifically Intended"

To violate Section 2340A, the statute requires that severe pain and suffering must be inflicted with specific intent. See 18 U.S.C. § 2340(1). In order for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act. See United States v. Carter, 530 U.S. 255, 269 (2000); Black's Law Dictionary at 814 (7th ed. 1999) (defining specific intent as "[t]he intent to accomplish the precise criminal act that one is later charged with"). For example, in Ratzlaf v. United States, 510 U.S. 135, 141 (1994), the statute at issue was construed to require that the defendant act with the "specific intent to commit the crime." (Internal quotation marks and citation omitted). As a result, the defendant had to act with the express "purpose to disobey the law" in order for the mens rea element to be satisfied. Ibid. (internal quotation marks and citation omitted)

Here, because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant's precise objective. If the statute had required only general intent, it would be sufficient to establish guilt by showing that the defendant "possessed knowledge with respect to the actus reus of the crime." Carter, 530 U.S. at 268. If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent. See id. at 269; Black's Law Dictionary 813 (7th ed. 1999) (explaining that general intent "usu[allyl takes the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or negligence (involving blameworthy inadvertence)"). The Supreme Court has used the following example to illustrate the difference between these two mental states:

[A] person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying "general intent"), he did not intend permanently to deprive the bank of its possession or the money (failing to satisfy "specific intent").


Carter, 530 U.S. at 268 (citing 1 W. LaFave & A. Scott, Substantive Criminal Law §§ 3.5. at 315 (1986)).

As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent. As the Supreme Court explained in the context of murder, "the ... common law of homicide distinguishes ... between a person who knows that another person will be killed as a result of his conduct and a person who acts with the specific purpose of taking another's life[.]" United States v. Bailey, 444 U.S. 394, 405 (1980). "Put differently, the law distinguishes actions taken 'because of' a given end from actions taken in spite of their unintended but foreseen consequences." Vacco v. Quill, 521 U.S. 793, 802-03 (1997). Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control. While as a theoretical matter such knowledge does not constitute specific intent, juries are permitted to infer from the factual circumstances that such intent is present. See, e.g., United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001); United States v. Karro, 257 F.3d 112, 118 (2d Cir. 2001); United States v. Wood, 207 F.3d 1222, 1232 (10th Cir. 2000); Henderson v. United States, 202 F.2d 400, 403 (6th Cir. 1953). Therefore, when a defendant knows that his actions will produce the prohibited result, a jury will in all likelihood conclude that the defendant acted with specific intent.

Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent. See, e.g., South Atl. Lmtd. Ptrshp. of Tenn. v. Reise, 218 F.3d 518, 531 (4th Cir. 2002). Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct. See Cheek v. United States, 498 U.S. 192, 202 (1991); United States v. Mancuso, 42 F.3d 836, 837 (4th Cir. 1994). For example, in the context of mail fraud, if an individual honestly believes that the material transmitted is truthful, he has not acted with the required intent to deceive or mislead. See, e.g., United States v. Sayakhom, 186 F.3d 928, 939-40 (9th Cir. 1999). A good faith belief need not be a reasonable one. See Cheek, 498 U.S. at 202.

Although a defendant theoretically could hold an uneasonable belief that his acts would not constitute the actions prohibited by the statute, even though they would as a certainty produce the prohibited effects, as a matter of practice in the federal criminal justice system it is highly unlikely that a jury would acquit in such a situation. Where a defendant holds an unreasonable belief, he will confront the problem of proving to the jury that he actually held that belief. As the Supreme Court noted in Cheek, "the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury ... will find that the Government has carried its burden of proving" intent. Id. at 203-04. As we explained above, a jury will be permitted to infer that the defendant held the requisite specific intent. As a matter of proof, therefore, a good faith defense will prove more compelling when a reasonable basis exists for the defendant's belief.

B. "Severe Pain or Suffering"

The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) ("This Court has noted on numerous occasions that in all cases involving statutory construction, our starting point must be the language employed by Congress, ... and we assume that the legislative purpose is expressed by the ordinary meaning of the words used.") (internal quotations and citations omitted). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572 (1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ...: hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

Congress' use of the phrase "severe pain" elsewhere in the United States Code can shed more light on its meaning. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 3, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law."). Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U .S.C. § 1369 (2000); 42 U.S.C § 1395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id. § 1396b (2000); id. § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d) (3)(B) (emphasis added). Although these statutes address a substantially different subject from Section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that "severe pain," as used in Section 2340, must rise to a similarly high level -- the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions -- in order to constitute torture. [3l

C. "Severe mental pain or suffering"

Section 2340 gives further guidance as to the meaning of "severe mental pain or suf-fering," as distinguished from severe physical pain and suffering. The statute defines "severe mental pain or suffering" as:

the prolonged mental harm caused by or resulting from

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.


18 U.S.C. § 2340(2). In order to prove "severe mental pain or suffering," the statute requires proof of "prolonged mental harm" that was caused by or resulted from one of four enumerated acts. We consider each of these elements.

1. "Prolonged Mental Harm". As an initial matter, Section 2340(2) requires that the severe mental pain must be evidenced by "prolonged mental harm." To prolong is to "lengthen in time" or to "extend the duration of, to draw out." Webster's Third New International Dictionary 1815 (1988); Webster's New International Dictionary 1980 (2d ed. 1935). Accordingly, "prolong" adds a temporal dimension to the harm to the individual, namely, that the harm must be one that is endured over some period of time. Put another way, the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage. For example, the mental strain experienced by an individual during a lengthy and intense interrogation -- such as one that state or local police might conduct upon a criminal suspect -- would not violate Section 2340(2). On the other hand, the development of a mental disorder such as post-traumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 426, 439-45 (4th ed. 1994) ("DSM-IV"). See also Craig Homey & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 509 (1997) (noting that post-traumatic stress disorder is frequently found in torture victims); cf: Sana Loue, Immigration Law and Health § 10:46 (2001) (recommending evaluating for post-traumatic stress disorder immigrant-client who has experienced torture). [4] By contrast to "severe pain," the phrase "prolonged mental harm" appears nowhere else in the U.S. Code nor does it appear in relevant medical literature or international human rights reports.

Not only must the mental harm be prolonged to amount to severe mental pain and suffering, but also it must be caused by or result from one of the acts listed in the statute. In the absence of a catch-all provision, the most natural reading of the predicate acts listed in Section 2340(2)(A)-(D) is that Congress intended it to be exhaustive. In other words, other acts not included within Section 2340(2)'s enumeration are not within the statutory prohibition. See Leatherman v. Tarrant Country Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) ("Expressio unius est exclusio alterius."); Norman Singer, 2A Sutherland on Statutory Construction §47.23 (6th ed. 2000) ("[W]here a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.") (footnotes omitted). We conclude that torture within the meaning of the statute requires the specific intent to cause prolonged mental harm by one of the acts listed in Section 2340(2).

A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered prolonged mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute. The statute requires that the defendant specifically intend to inflict severe mental pain or suffering. Because the statute requires this mental state with respect to the infliction of severe mental pain, and because it expressly defines severe mental pain in terms of prolonged mental harm, that mental state must be present with respect to prolonged mental harm. To read the statute otherwise would read the phrase "the prolonged mental harm caused by or resulting from" out of the definition of "severe mental pain or suffering."

A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute. Thus, if a defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience. See, e.g., Ratlzlaf; 510 U.S. at 142 n.10 (noting that where the statute required that the defendant act with the specific intent to violate the law, the specific intent element "might be negated by, e.g., proof that defendant relied in good faith on advice of counsel.") (citations omitted). All of these steps would show that he has drawn on the relevant body of knowledge concerning the result proscribed that the statute, namely prolonged mental harm. Because the presence of good faith would negate the specific intent element of torture, it is a complete defense to such a charge. See, e.g., United States v. Wall, 130 F.3d 739, 746 (6th Cir. 1997); United States v. Casperson, 773 F.2d 216, 222-23 (8th Cir. 1985).

2. Harm Caused By Or Resulting From Predicate Acts. Section 2340(2) sets forth four basic categories of predicate acts. First in the list is the "intentional infliction or threatened infliction of severe physical pain or suffering." This might at first appear superfluous because the statute already provides that the infliction of severe physical pain or suffering can amount to torture. This provision, however, actually captures the infliction of physical pain or suffering when the defendant inflicts physical pain or suffering with general intent rather than the specific intent that is required where severe physical pain or suffering alone is the basis for the charge. Hence, this subsection reaches the infliction of severe physical pain or suffering when it is but the means of causing prolonged mental harm. Or put another way, a defendant has committed torture when he intentionally inflicts severe physical pain or suffering with the specific intent of causing prolonged mental harm. As for the acts themselves, acts that cause "severe physical pain or suffering" can satisfy this provision.

Additionally, the threat of inflicting such pain is a predicate act under the statute. A threat may be implicit or explicit. See, e.g., United States v. Sachdev, 279 F.3d 25, 29 (1st Cir. 2002). In criminal law, courts generally determine whether an individual's words or actions constitute a threat by examining whether a reasonable person in the same circumstances would conclude that a threat had been made. See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969) (holding that whether a statement constituted a threat against the President's life had to be determined in light of all the surrounding circumstances); Sachdev, 279 F.3d at 29 ("a reasonable person in defendant's position would perceive there to be a threat, explicit, or implicit, of physical injury"); United States v. Khorrami, 895 F.2d 1186, 1190 (7th Cir. 1990) (to establish that a threat was made, the statement must be made "in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon [another individual]") (citation and internal quotation marks omitted); United States v. Peterson, 483 F.2d 1222, 1230 (D.C. Cir. 1973) (perception of threat of imminent harm necessary to establish self-defense had to be "objectively reasonable in light of the surrounding circumstances"). Based on this common approach, we believe that the existence of a threat of severe pain or suffering should be assessed from the standpoint of a reasonable person in the same circumstances.

Second, Section 2340(2)(B) provides that prolonged mental harm, constituting torture, can be caused by "the administration or application or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." The statute provides no further definition of what constitutes a mind-altering substance. The phrase "mind-altering substances" is found nowhere else in the U.S. Code nor is it found in dictionaries. It is, however, a commonly used synonym for drugs. See, e.g., United States v. Kingsley, 241 F.3d 828, 834 (6th Cir.) (referring to controlled substances as "mind-altering substance[s]") cert. denied, 122 S. Ct. 137 (2001); Rogue v. Johnson, 131 F.3d 466, 501 (5th Cir. 1997) (referring to drugs and alcohol as "mind-altering substance[s]"), cert. denied, 523 U.S. 1014 (1998). In addition, the phrase appears in a number of state statutes, and the context in which it appears confirms this understanding of the phrase. See, e.g., Cal. Penal Code § 3500(c) (West Supp. 2000) ("Psychotropic drugs also include mind-altering ... drugs ...."); Minn. Stat. Ann. § 260B.201(b) (West Supp. 2002) ("'chemical dependency treatment'" define as programs designed to "reduc[e] the risk of the use of alcohol, drugs, or other mind-altering substances").

This subparagraph, however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that "disrupt profoundly the senses or the personality." To be sure, one could argue that this phrase applies only to "other procedures," not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340(2) expressly indicate that the qualifying phrase applies to both "other procedures" and the "application of mind-altering substances. The word "other" modified "procedures calculated to disrupt profoundly the senses." As an adjective, "other" indicates that the term or phrase it modifies is the remainder of several things. See Webster's Third New International Dictionary 1598 (1986) (defining "other" as "the one that remains of two or more") Webster's Ninth New Collegiate Dictionary 835 (1985) (defining "other" as "being the one (as of two or more) remaining or not included"). Or put another way, "other" signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where statutes couple words or phrases together, it "denotes an intention that they should be understood in the same general sense." Norman Singer, 2A Sutherland on Statutory Construction §47:16 (6th ed. 2000); see also Beecham v. United States, 511 U.S. 368, 371 (1994) ("That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well."). Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the senses or personality and the use of "other" to modify "procedures" shows that the use of such substances must also cause a profound disruption of the senses or personality.

For drugs or procedures to rise to the level of "disrupt[ing] profoundly the senses or personality," they must produce an extreme effect. And by requiring that they be "calculated" to produce such an effect, the statute requires for liability the defendant has consciously designed the acts to produce such an effect. 28 U.S.C. § 2340(2)(B). The word "disrupt" is defined as "to break asunder; to part forcibly; rend," imbuing the verb with a connotation of violence. Webster's New International Dictionary 753 (2d ed. 1935); see Webster's Third New International Dictionary 656 (1986) (defining disrupt as "to break apart: Rupture" or "destroy the unity or wholeness of'); IV The Oxford English Dictionary 832 (1989) (defining disrupt as "[t]o break or burst asunder; to break in pieces; to separate forcibly"). Moreover, disruption of the senses or personality alone is insufficient to fall within the scope of this subsection; instead, that disruption must be profound. The word "profound" has a number of meanings, all of which convey a significant depth. Webster's New International Dictionary 1977 (2d ed. 1935) defines profound as: "Of very great depth; extending far below the surface or top; unfathomable[;] ... [c]oming from, reaching to, or situated at a depth or more than ordinary depth; not superficial; deep-seated; chiefly with reference to the body; as a profound sigh, wound, or pain[;] ... [c]haracterized by intensity, as of feeling or quality; deeply felt or realized; as, profound respect, fear or melancholy; hence, encompassing; thoroughgoing; complete; as, profound sleep, silence, or ignorance." See Webster's Third New International Dictionary 1812 (1986) ("having very great depth: extending far below the surface ... not superficial"). Random House Webster's Unabridged Dictionary 1545 (2d ed. 1999) also defines profound as "originating in or penetrating to the depths of one's being" or "pervasive or intense; thorough; complete" or "extending, situated, or originating far down, or far beneath the surface." By requiring that the procedures and the drugs create a profound disruption, the statute requires more than that the acts "forcibly separate" or "rend" the senses or personality. Those acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.

The phrase "disrupt profoundly the senses or personality" is not used in mental health literature nor is it derived from elsewhere in U.S. law. Nonetheless, we think the following examples would constitute a profound disruption of the senses or personality. Such an effect might be seen in a drug-induced dementia. In such a state, the individual suffers from significant memory impairment, such as the inability to retain any new information or recall information about things previously of interest to the individual. See DSM-IV at 134.5 This impairment is accompanied by one or more of the following: deterioration of language function, e.g., repeating sounds or words over and over again; impaired ability to execute simple motor activities, e.g., inability to dress or wave goodbye; "[in]ability to recognize [and identify] objects such as chairs or pencils" despite normal visual functioning; or "[d]isturbances in executive level functioning," i.e., serious impairment of abstract thinking. Id. at 134-35. Similarly, we think that the onset of "brief psychotic disorder" would satisfy this standard. See id. at 302-03. In this disorder, the individual suffers psychotic symptoms, including among other things, delusions, hallucinations, or even a catatonic state. This can last for one day or even one month. See id. We likewise think that the onset of obsessive-compulsive disorder behaviors would rise to this level. Obsessions are intrusive thoughts unrelated to reality. They are not simple worries, but are repeated doubts or even "aggressive or horrific impulses." See id. at 418. The DSM-IV further explains that compulsions include "repetitive behaviors (e.g., hand washing, ordering, checking)" and that "[b ]y definition, [they] are either clearly excessive or are not connected in a realistic way with what they are designed to neutralize or prevent." See id. Such compulsions or obsessions must be "time-consuming." See id. at 419. Moreover, we think that pushing someone to the brink of suicide, particularly where the person comes from a culture with strong taboos against suicide, and it is evidenced by acts of self-mutilation, would be a sufficient disruption of the personality to constitute a "profound disruption." These examples, of course, are in no way intended to be exhaustive list. Instead, they are merely intended to illustrate the sort of mental health effects that we believe would accompany an action severe enough to amount to one that "disrupt[s] profoundly the senses or the personality."

The third predicate act listed in Section 2340(2) is threatening a prisoner with "imminent death." 18 U.S.C. § 2340(2) (C). The plain text makes clear that a threat of death alone is insufficient; the threat must indicate that death is "imminent." The "threat of imminent death" is found in the common law as an element of the defense of duress. See Bailey, 444 U.S. at 409. "[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette v. United States, 342 U.S. 246, 263 ( 1952). Common law cases and legislation generally define imminence as requiring that the threat be almost immediately forthcoming. 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 655 (1986). By contrast, threats referring vaguely to things that might happen in the future do not satisfy this immediacy requirement. See United States v. Fiore, 178 F.3d 917, 923 (7th Cir. 1999). Such a threat fails to satisfy this requirement not because it is too remote in time but because there is a lack of certainty that it will occur. Indeed, timing is an indicator of certainty that the harm will befall the defendant. Thus, a vague threat that someday the prisoner might be killed would not suffice. Instead, subjecting a prisoner to mock executions or playing Russian roulette with him would have sufficient immediacy to constitute a threat of imminent death. Additionally, as discussed earlier, we believe that the existence of a threat must be assessed from the perspective of a reasonable person in the same circumstances.

Fourth, if the official threatens to do anything previously described to a third party, or commits such an act against a third party, that threat or action can serve as the necessary predicate for prolonged mental harm. See 18 U.S.C. § 2340 2)(D). The statute does not require any relationship between the prisoner and the third party.

3. Legislative History. The legislative history of Sections 2340-2340A is scant. Neither the definition of torture nor these sections as a whole sparked any debate. Congress criminalized this conduct to fulfill U.S. obligations under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), adopted Dec.10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987), which requires signatories to "ensure that all acts of torture are offenses under its criminal law." CAT Article 4. These sections appeared only in the Senate version of the Foreign Affairs Authorization Act, and the conference bill adopted them without amendment. See H. R. Conf. Rep. No. 103-482, at 229 ( 1994 ). The only light that the legislative history sheds reinforces what is already obvious from the texts of Section 2340 and CAT: Congress intended Section 2340's definition of torture to track the definition set forth in CAT, as elucidated by the United States' reservations, understandings, and declarations submitted as part of its ratification. See S. Rep. No. 103-107, at 58 (1993) ("The definition of torture emanates directly from Article 1 of the Convention."); id. at 58-59 ("The definition for 'severe mental pain and suffering' incorporates the understanding made by the Senate concerning this term.").

4. Summary. Section 2340's definition of torture must be read as a sum of these component parts. See Argentine Rep. v. Amerada Hess Shipping Carp., 488 U.S. 428, 434-35 (1989) (reading two provisions together to determine statute's meaning); Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 405 (1988) (looking to "the language and design of the statute as a whole" to ascertain a statute's meaning). Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. In addition, these acts must cause long-term mental harm. Indeed, this view of the criminal act of torture is consistent with the term's common meaning. Torture is generally understood to involve "intense pain" or "excruciating pain," or put another way, "extreme anguish of body or mind." Black's Law Dictionary at 1498 (7th Pod. 1999); Random House Webster's Unabridged Dictionary 1999 (1999); Webster's New International Dictionary 2674 (2d ed. 1935) In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts. [6l

II. U.N. Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment

Because Congress enacted the criminal prohibition against torture to implement CAT, we also examine the treaty's text and history to develop a fuller understanding of the context of Sections 2340-2340A. As with the statute, we begin our analysis with the treaty's text. See Eastern Airlines Inc. v. Floyd, 499 U.S. 530, 534-35 (1991) ("When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used.) (quotation marks and citations omitted). CAT defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.


Article 1(1) (emphasis added). Unlike Section 2340, this definition includes a list of purposes for which such pain and suffering is inflicted. The prefatory phrase "such purposes as'' makes clear that this list is, however, illustrative rather than exhaustive. Accordingly, severe pain or suffering need not be inflicted for those specific purposes to constitute torture; instead, the perpetrator must simply have a purpose of the same kind. More importantly, like Section 2340, the pain and suffering must be severe to reach the threshold of torture. Thus, the text of CAT reinforces our reading of Section 2340 that torture must be an extreme act. [7]

CAT also distinguishes between torture and other acts of cruel, inhuman, or degrading treatment or punishment. [8] Article 16 of CAT requires state parties to "undertake to prevent ... other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1." (Emphasis added). CAT thus establishes a category of acts that are not to be committed and that states must endeavor to prevent, but that states need not criminalize, leaving those acts without the stigma of criminal penalties. CAT reserves criminal penalties and the stigma attached to those penalties for torture alone. In so doing, CAT makes clear that torture is at the farthest end of impermissible actions, and that it is distinct and separate from the lower level of "cruel, inhuman, or degrading treatment or punishment." This approach is in keeping with CAT's predecessor, the U.N. Declaration on the Protection from Torture. That declaration defines torture as "an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment." Declaration on Protection from Torture, UN Res. 3452, Art. 1(2) (Dec. 9, 1975)
admin
Site Admin
 
Posts: 28145
Joined: Thu Aug 01, 2013 5:21 am

PreviousNext

Return to Investigations of Government

Who is online

Users browsing this forum: No registered users and 1 guest