Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

10 - Detaining and Trying Suspected Terrorists

144 10 de­ tain­ ing and try­ ing sus­ pected ter­ ror­ ists John Yoo’s ar­ gu­ ment that the pres­ i­ dent pos­ sesses ple­ nary au­ thor­ ity to make all de­ ci­ sions re­ gard­ ing the use of mil­ i­ tary force had con­ se­ quences that went be­ yond the im­ me­ di­ ate de­ ci­ sion to send­ troops to Af­ ghan­ i­ stan in Oc­ to­ ber 2001. Con­ duct­ ing the “war on ter­ ror” also meant de­ tain­ ing sus­ pected ter­ ror­ ists and gath­ er­ ing, ­ through inter­ ro­ ga­ tion, in­ for­ ma­ tion to pre­ vent fu­ ture at­ tacks. Emer­ gency pres­ i­ den­ tial power might apply in each of these areas, as each in­ volves ­ threats to na­ tional se­ cur­ ity. If, as Yoo con­ cluded, de­ ci­ sions re­ gard­ ing the use of mil­ i­ tary force were for the pres­ i­ dent alone, would that mean the pres­ i­ dent could uni­ lat­ er­ ally de­ cide what to do in these areas too? Ques­ tions arose as sus­ pected ter­ ror­ ists were cap­ tured in Af­ ghan­ i­ stan and else­ where: would they re­ ceive ­ trials in ci­ vil­ ian ­ courts? If not, what pro­ ce­ dures would be used? Would they be tried be­ fore mil­ i­ tary tri­ bu­ nals, like the Nazi sab­ o­ teurs in Qui­ rin? If so, what rules would apply? Could they be held in­ def­i­ nitely, with­ out ­ charges, as the CIA inter­ ro­ gated them to­ gather in­ for­ ma­ tion that might pre­ vent fu­ ture ter­ ror­ ist at­ tacks? Who would make these de­ ci­ sions, and what role, if any, would Con­ gress and the ­ courts play? In past con­ flicts, dis­ tinc­ tions have been made ­ between law­ ful enemy com­ bat­ ants—sol­ diers in uni­ form cap­ tured on the bat­ tle­ field—and un­ law­ ful enemy com­ bat­ ants, spies out of uni­ form, sab­ o­ teurs, or sol­ diers in uni­ form who vi­ o­ lated the laws of war (e.g., by mis­ treat­ ing ci­ vil­ ians or pris­ on­ ers of war). The ­ court’s de­ ci­ sion in Qui­ rin dis­ cussed this dis­ tinc­ tion, and the Ge­ neva Con­ ven­ tions ­ adopted after World War II rec­ og­ nized a sim­ i­ lar dis­ tinc­ tion. Tra­ di­ tion­ ally, law­ ful enemy com­ bat­ ants were pris­ on­ ers of war (POWs) who could be held for the du­ ra­ tion of the con­ flict and who would 145 detaining and trying suspected terrorists be re­ pa­ tri­ ated when hos­ til­ ities ended. POWs could not be pun­ ished or put on trial. Un­ law­ ful enemy com­ bat­ ants, by ­ contrast, who had vi­ o­ lated the laws of war, could be tried be­ fore mil­ i­ tary tri­ bu­ nals and sen­ tenced to­ prison or even ex­ e­ cuted, like the sab­ o­ teurs in Qui­ rin. Of ­ course, as we saw in Qui­ rin, there were still ques­ tions about how such mil­ i­ tary ­ trials ­ should take place, who ­ should make the rules, and who de­ fines vi­ o­ la­ tions of the laws of war. The Ge­ neva Con­ ven­ tions ­ adopted in 1949 and rat­ ified by the ­ United­ States in 1955 pro­ vide spe­ cific guid­ ance about clas­ sify­ ing enemy com­ bat­ ants. Under Ar­ ti­ cle 4 of the Ge­ neva Con­ ven­ tion Rel­ a­ tive to the Treat­ ment of Pris­ on­ ers of War (GPW), cap­ tured com­ bat­ ants are en­ ti­ tled to ­ prisoner-ofwar ­ status if they are mem­ bers of tra­ di­ tional enemy armed ­ forces or if they are mem­ bers of “mi­ li­ tias and mem­ bers of other vol­ un­ teer corps, in­ clud­ ing those of or­ ga­ nized re­ sis­ tance move­ ments” who ­ satisfy four con­ di­ tions: “(a) That of being com­ manded by a per­ son re­ spon­ sible for his sub­ or­ di­ nates; (b) That of hav­ ing a fixed dis­ tinc­ tive sign rec­ og­ niz­ able at a dis­ tance; (c) That of car­ ry­ ing arms ­ openly; (d) That of con­ duct­ ing their op­ er­ a­ tions in ac­ cor­ dance with the laws and cus...