The Global War on Terrorism and the U.S. Constitution

[thedrifter]

The Global War on Terrorism and the U.S. Constitution

by LtCol Timothy J. Bailey, USMCR

When the enemy is all around us, it is important to understand the complexities involved
in countering these universal threats. In this penetrating article, the author takes us
to a new level of understanding of the global war on terrorism.


In the global war on terrorism (GWOT), the United States must ?make use of every tool in [its] arsenal?military power, homeland defense, law enforcement, intelligence,?1 in order to defeat2 the terrorist threat. Terrorism is a complex, asymmetric threat that requires a careful orchestration and application of national power. The military, law enforcement, and intelligence must complement each other. In order for this to occur, there must be an appreciation of how each ?tool? contributes in this war (capabilities and limitations, constraints and restraints, etc.). Each must understand its principal role, as well its relationship to the others, to include which has the dominant or lead role and which is supporting, and when and why these relationships occur. In the GWOT, relationships will be determined based on missions; i.e., an arrest or an attack.3 However, there could be situations where one tool assumes a lead role based on an unforeseen event, such as the capture of an American citizen on a foreign battlefield. This necessary understanding of what each tool in the national arsenal brings to this war must be resident at all levels, including the operational and tactical levels. Without this knowledge, a tool in the national arsenal may be misapplied or used in such a way as to negate or diminish the effectiveness of other tools.


In the GWOT the United States is waging a war against organizations represented for the most part by Osama bin Laden?s al-Qaeda. Terrorist organizations are non-State actors. In short, the world?s sole superpower is waging a war against groups of individuals spread across the globe. The enemy consists of several nationalities, to include individuals from nations with friendly relations with the United States, such as Saudi Arabia and the United Kingdom. Most disturbing is the fact that, in a few cases, some of the enemy combatants have been American citizens. Finally, in the GWOT some enemy combatants have become criminal defendants. This particular fact presents a complicated situation?a situation where the principal roles of the tools overlap and where the actions of one may negate the effectiveness of the other. Under such circumstances the behavior of the military or intelligence tools may cause difficulties or frustrate the purpose of the law enforcement tool.


Law Enforcement and the GWOT
To date the law enforcement role in the GWOT has been somewhat confusing. There have been a number of cases handled inconsistently. Zacarias Moussaoui?s case demonstrated the Government?s decision to prosecute in civilian court a foreign national seized on U.S. territory. Jose Padilla?s case demonstrated the Government?s decision to detain in military custody a U.S. citizen seized on U.S. territory. Yaser Esam Hamdi?s case demonstrated the Government?s decision to detain in military custody a U.S. citizen seized on a foreign battlefield. Richard Reid?s case demonstrated the Government?s decision to prosecute in a civilian court a foreign national seized on a U.S. airliner. Finally, the John Walker Lindh case demonstrated the Government?s decision to prosecute in a civilian court a U.S. citizen seized on a foreign battlefield.4 These cases demonstrate that in the GWOT some individuals and materials captured or seized on the ?battlefield? end up in a civilian Federal court facing a civilian prosecution. Law enforcement does not end with an arrest. It concludes with a prosecution and conviction. Successful civilian prosecutions require constitutionally admissible evidence.


When an individual?a U.S. citizen or not?is prosecuted in a civilian court, the behavior of the personnel who captured the accused and who gathered the physical evidence or statements the Government may seek to introduce at trial is subject to judicial scrutiny. Military personnel are not trained to operate as law enforcement officials. In general, a military operation is conducted to defeat the enemy. A law enforcement operation is conducted in response to criminal activity, and it seeks to effect an arrest that will facilitate a successful prosecution. While both serve to protect national security, they utilize different methods to attain their results. Law enforcement actions must be consistent with constitutional criminal procedural law. The military has never had to confront these operational constraints. In fact, the Posse Comitatus Act,5 which forbids direct military participation in civilian law enforcement, mitigated any reason for the military to confront this issue. That changed somewhat on 11 September 2001. In the GWOT there must be a basic awareness of law enforcement constraints in order to ensure that success on the battlefield is consistent with success in the courtroom. This proposition does not suggest that military personnel should conduct themselves like police officers and employ such measures as minimal force and Miranda warnings before interrogations. However, they should have a rudimentary understanding of how to conduct themselves when they encounter the John Walker Lindhs of the modern GWOT battlefield.


Individuals ?Seized?6 on the GWOT Battlefield
An individual captured pursuant to a military operation is not seized in the Fourth Amendment7 meaning of the word. A person seized under the Fourth Amendment is a person arrested or detained against their will pursuant to a criminal investigation and prosecution. Individuals captured on the GWOT battlefield are seized during the course of a military operation. They are enemy combatants, not criminal defendants.8 It is highly improbable that any civilian court would be willing to extend the Fourth Amendment?s protections against unlawful seizures of the person to include the capture of enemy personnel during combat, even if some are U.S. citizens. There is, or should be, a presumption that enemy combatants are not U.S. citizens. An extension of the Constitution?s criminal procedural protections would unnecessarily endanger military personnel by complicating military operations. However, as the John Walker Lindh case illustrated, some enemy combatants do end up in a civilian court facing civilian criminal prosecution. As a result, there should be a basic understanding of the legal aspects that may be present when such enemy combatants are captured.


Despite the war paradigm, a person seized on the GWOT battlefield may later seek to challenge the lawfulness of his seizure or the introduction of any statements or physical evidence if he is later prosecuted in a civilian court. Generally speaking, a lawful arrest is required by the Fourth Amendment. A lawful arrest means there must be some legitimate legal basis that exists prior to the seizure of the person.9 However, a seizure that lacks a prior legal basis will not necessarily prevent a subsequent prosecution. A person?s presence before a civilian court is not ?suppressible? because his presence was procured by an unlawful means.10 The Supreme Court decided this particular issue in the late 1880s. In Ker v. Illinois, an agent of the Federal Government went to Peru with an extradition request for the defendant. Upon arriving in Peru the agent did not present the extradition request to Peruvian authorities, but ?forcibly? seized the defendant and returned him to the United States. At his trial the defendant objected to the jurisdiction of the court based, in part, on how he was physically brought before the court. The Supreme Court affirmed the conviction and opined:


. . . but, for mere irregularities in the manner in which he may be brought into custody of the law, we do not think he is entitled to say that he should not be tried at all for the crime with which he is charged in a regular indictment.11

The holding (rule) of Ker was reaffirmed in 1952 in the case Frisbie v. Collins. In Frisbie the Supreme Court stated that:


This Court has never departed from the rule announced in Ker v. Illinois . . . that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court?s jurisdiction by reason of a ?forcible abduction.?12

An individual captured on a GWOT battlefield has not been ?forcibly abducted,? he has been captured pursuant to a military operation. Nevertheless, the Ker-Frisbie rule would prevent an individual seized on a GWOT battlefield from arguing that there was a deficient legal basis for his detention and thus a bar to a subsequent civilian prosecution.


The Ker-Frisbie doctrine is not without limitations, however. These limitations are based on the conduct of the individual(s) who make the seizure or have some form of physical control over a seized person. The Second Circuit Court denied a trial court jurisdiction when it determined that the defendant?s presence in the court was procured through the use of ?torture and abuse? and was ?shocking to the conscience.?13 The U.S. Supreme Court also opined:

There may be situations ?in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.?14

The treatment of individuals prior to their trial has legal significance. This fact must be emphasized in the GWOT, particularly when it is learned by U.S. military that an enemy combatant is also a U.S. citizen. There will likely be a visceral emotional response by military personnel when it is learned that they have captured a fellow citizen who has taken up arms against our country. It would be unfortunate if the emotions of honorable men and women prevented a subsequent prosecution due to unawareness of the law.


The maltreatment of GWOT prisoners could not only bring unwanted media attention, but it could jeopardize subsequent criminal prosecutions. ?Trophy shots? of captured unlawful combatants could provide prima facie evidence for defense attorneys to argue that their client?s due process rights were violated. This would open the door to ?fishing expeditions? by defense attorneys and subpoenas served on military personnel to explain their conduct. Until these issues are litigated and the lines become clear, military personnel should be mindful of law enforcement considerations when a U.S. citizen or anyone else to be prosecuted in a civilian court is captured on the battlefield.


Interrogations of Individuals Seized in the GWOT.


In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution of the United States commanding that no person ?shall be compelled in any criminal case to be a witness against himself. . . . a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . . A confession can never be received in evidence where the prisoner has been influenced by any threat or promise. . . .?15

Individuals captured on the battlefield are valuable sources of information. Consequently, they are subjected to interrogation. In the context of a battlefield capture, the paradigm again is war and not law enforcement. Therefore, a civilian court is unlikely to insist on the custodial interrogation requirements of Miranda v. Arizona16 if a GWOT enemy combatant is subsequently prosecuted in a civilian court. However, if a GWOT enemy combatant were later prosecuted, civilian courts would be loath to allow the use of any statements against the defendant if the statements were produced by ?coercion.?


What constitutes coercion? In short, any inducement ?engendering hope or fear? constitutes compulsion in determining whether a statement has been coerced.17 A coerced statement is not only excluded from direct usage in the Government?s case in chief in a civilian court, but any evidence derived from it is likewise inadmissible.18 For example, if the interrogation produced a coerced statement that consequently led to the discovery of some physical evidence, the physical evidence would generally not be allowed as evidence in a civilian court. A statement acquired through use of physical torture is always inadmissible in a civilian court19 and probably would be inadmissible in a military tribunal. Statements acquired through prolonged questioning, and other forms of mental coercion, have also have been ruled inadmissible in civilian courts.20


Military operations require actionable intelligence in order to reduce uncertainty and increase the probability of success on the battlefield. Interrogations of enemy combatants are a good source of actionable intelligence. They provide commanders and planners with an almost realtime picture of the battlefield. In the GWOT, interrogations are critical to ascertain the existence of pending operations, the identity and locations of terrorist cells and operatives, levels of terrorist training, what weapons the terrorists possess, etc. Statements made during the course of interrogations are likely to involve some form of coercion and thus are generally inadmissible in a subsequent civilian prosecution. This fact does not suggest that interrogators should refrain from aggressively interrogating captured personnel. The value of the information gathered far outweighs any problems it may cause if there is a later prosecution. However, the military tool should be mindful of this possible negative consequence, and it should be weighed with other considerations when handling an individual whom the military suspects the Government may later seek to prosecute in a civilian court.

Conclusion


[Ahmed] Hijazi?s [U.S.] citizenship highlights the different approaches pursued simultaneously by the administration as it wages its war on terror. In some cases since Sept. 11, American citizens have been arrested and afforded traditional legal rights in the criminal justice system. In others, they have been captured and held indefinitely in military brigs as ?enemy combatants.? Now, at least in Hijazi?s case, a citizen has been killed in a covert military action. . . . Even in war, the U.S. government affords greater legal protections to U.S. citizens than foreigners and, in peacetime, the CIA [Central Intelligence Agency] is restricted in the kinds of surveillance and operations it can conduct against U.S. citizens at home and abroad.21

Terrorism is more than just an asymmetric threat to the national security of the United States. Terrorism is a federal crime. In 1986 Congress passed the Omnibus Antiterrorism and Diplomatic Security Act making it a crime to murder:


. . . a national of the United States, while such national is outside the United States . . . [if the murder is] intended to coerce, intimidate, or retaliate against a government or a civilian population.22

Since enactment of this law, and prior to 11 September 2001, a number of individuals, to include Osama bin Laden, have been indicted under this statute.23 Since 11 September, many more individuals, to include U.S. citizens, have been indicted for allegedly violating numerous federal criminal statutes, such as Conspiracy to Levy War Against the United States.24 There is little doubt that the GWOT is a war. However, it is a war with strong law enforcement overtones of which the military should be mindful.


The legal aspects of GWOT are not likely to abate.25 Yale Law Professor Ruth Wedgwood, commenting on the legal issues raised in the Hamdi and Padilla cases, stated that ?[i]n ordinary wars, the courts would not even look at a case like this, but in this peculiar war, the issues are less clear.?26 The environment in which the GWOT is being, and will be, fought is unique. The area of operations is worldwide and includes not just Afghanistan, Yemen, etc., but the United States itself. Most enemy combatants are not just unlawful enemy combatants. Some are also criminal defendants. Some are American citizens. In the GWOT, military and intelligence are fighting alongside law enforcement, literally and figuratively. The military and intelligence tools must respect and understand the contributions of law enforcement and ensure that they do not negate the effectiveness of this tool in the national arsenal.

Notes


1. The National Security Strategy of the United States of America, Government Printing Office, Washington, DC, September 2002.


2. Some experts on contemporary terrorism would argue that terrorism cannot be defeated in a military sense. A more attainable objective would be to seriously degrade those terrorists groups with a transnational operational capability and with objectives inimical to the United States, followed by a subsequent terrorism containment phase/strategy.


3. The Federal Bureau of Investigation may be conducting an arrest with the Pakistani police while simultaneously U.S. aircraft conduct attacks on al-Qaeda in Afghanistan and intelligence runs an operation against Abu Sayyaf in the Philippines.


4. This disparity suggests that the Government is seeking test cases in order to prompt the judiciary to answer legal issues that are likely to continue to arise during the GWOT.


5. 18 U.S.C. ?1385. Use of the Army and Air Force as posse comitatus. ?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, or both.? Posse comitatus does not apply outside of the United States.


6. For the sake of this paper, ?seizure,? ?capture,? and ?arrest? are used interchangeably.


7. Fourth Amendment, U.S. Constitution. The Fourth Amendment to the Constitution guarantees ?[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.?

8. Article IV, 1949 Geneva Convention; see also, Michael Dorf, ?What is an ?Unlawful Combatant,? and why it matters: The Status of Detained Al Qaeda and Taliban Fighters,? 23 January 2002, FindLaw.com, Legal Commentary. In the GWOT, many of the enemy combatants are probably ?unlawful combatants? based on their intentional targeting of civilians, failure to carry arms openly, lack of uniforms, etc.


9. For example, an arrest warrant based on probable cause or a crime committed in an officer?s presence.


10. Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht v. United States, 273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519 (1952).

11. Ker at 440.


12. Frisbie at 521.


13. See United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).


14. See United States v. Russell, 411 U.S. 423, 431?2 (1973).


15. Bram v. United States, 168 U.S. 532, 542?3 (1897).


16. Miranda v. Arizona, 384 U.S. 436 (1966).


17. Bram, 168 U.S. at 558.


18. Counselman v. Hitchcock, 142 U.S. 547 (1892).


19. Brown v. Mississippi, 297 U.S. 278, 286 (1936).


20. Chambers v. Florida, 309 U.S. 227 (1940); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Ward v. Texas, 316 U.S. 547 (1942).


21. ?CIA Killed U.S. Citizen in Yemen Missile Strike: Action?s Legality, Effectiveness Questioned,? Dana Priest, The Washington Post, 8 November 2002, page A1.


22. See 18 U.S.C. ?2332(a) HOMICIDE. ?Whoever kills a national of the United States, while such national is outside the United States, shall . . . be fined under this title, punished by death or imprisonment for any term of years or for life, or both. . . .? This law has been amended numerous times and its scope broadened to criminalize the use of weapons of mass destruction and to proscribe fundraising for terrorists groups.


23. For example, Husayn al-Umari (Alias Abu Ibrahim), the leader of the May 15 Organization, and his bomb courier Mohammed Rashid were indicted for planting bombs on U.S. airliners in the 1980s. Abu Ibrahim presumably is still in Baghdad where his group was headquartered. Rashid was eventually captured and turned over to the United States. See Steven Emerson, ?Capture of a Terrorist,? New Times Magazine, 21 April 1991, p. 69.


24. For example, several U.S. citizens in Oregon were recently indicted for allegedly violating sections of the 1986 Omnibus Antiterrorism and Diplomatic Security Act (Amended), specifically 18 U.S.C ? 2339B, Conspiracy to Provide Material Support & Resources to Al-Qaida, and for allegedly violating 18 USC ? 2384, Conspiracy to Levy War Against the United States.


25. This article is not inclusive of all legal issues to arise during the GWOT. It is an attempt to address some of the major issues that would arise in circumstances involving the handling and treatment of persons captured during this war. There are many other issues, such as right to counsel, the confrontation clause, electronic surveillance, etc. that have not been addressed.


26. Jackman, Tom and Dan Eggen, ??Combatants Lack Rights, U.S. Argues,? The Washington Post, 20 June 2002, page 1. ?There is no right under the laws and customs of war for an enemy combatant to meet with counsel concerning his detention, much less to meet with counsel in private, without military authorities present. The court may not second-guess the military?s enemy combatant determination.? Justice Department Brief.


>LtCol Bailey is an assistant county prosecuting attorney by profession. Since 11 September 2001, he has been mobilized twice, most recently to serve as an intelligence officer with Commander Joint Task Force?180 in Afghanistan.

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Sempers,

Roger