OLC Memo: Swift Justice Authorization Act

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<p>An OLC memo concluding that Congress cannot interfere with the President's exercise of his authority as Commander in Chief to control the conduct of operations during war, including his authority to promulgate rules to regulate military commissions. &nbsp;The memo is criticized and partly repudiated in Steven Bradbury&rsquo;s 1/15/09 memo regarding the status of certain OLC opinions.</p>

Legal Memo
Monday, April 8, 2002
Sunday, March 1, 2009

U.S. Department of Justice Seal U.S. Department of Justice Office of Legal Counsel Washington. DC 20530 April 8, 2002 Office of the Deputy Assistant Attorney General MEMORANDUM FOR DANIEL J. BRYANT ASSISTANT ATTORNEY GENERAL OFFICE OF LEGISLATIVE AFFAIRS From: Patrick Philbin PRP 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, may be 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 men (less but nonetheless disruptive litigation. Background The proposed legislation recites that "[military 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.*" Section 5 establishes certain standards to govern detention of "persons who are not U.S. persons 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 and are members of Al Qaeda, or of other terrorist organizations that planned, authorized, committed, or aided in the September 11 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. II, § 1, cl. 1; id. § 2, cl. I. Because both "[the 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). 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 3 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 a board of officers to try the British Major Andre as 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... may be 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 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") 4 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 317 U.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 "[military commissions may be 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 long standing 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." Hirota v. MacArthur, 338 U.S. 197,208 (1948) (Douglas, J., concurring). For example, an enemy's use of a particular weapon that may be 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. 5 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 a part 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 "apart 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). 6 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 Chief 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. at265. 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 7 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. Trede 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