The 9/11 terrorist attacks have transformed the political landscape of the Untied States. The “War on Terror” raises unique national security challenges for the American government. In years past, the enemy was a clearly defined group or nation. It was therefore easy to identify and destroy the intended enemy. But terrorism is an entirely different ballgame. This is because traditional geopolitical boundaries no longer define the enemy. Because of the transnational difficulties inherent preventing, investigating, and prosecuting terrorists, the government has implemented a variety of means to better facilitate combating terrorism.
In the aftermath of the 9/11 attacks, the government’s response was swift and prompt. Just a few days after the attacks, on September 14, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) and the President signed into law. What is most significant about the AUMF is that it gives the President broader authority to respond to terroristic threats. The language of the AUMF gives the President the authority to use “necessary and appropriate force” against persons who “planned, authorized, committed, or aided” the 9/11 attacks (AUMF, 2001). The most important power derived from the AUMF is that the President, pursuant to his Commander in Chief status, has the power to declare persons as “enemy combatants” and can use appropriate military force against such enemy combatants.
In the context of warfare, trials in military courts are nothing new. These military courts have traditionally been viewed to only be available under certain conditions. The special circumstances of war and armed conflict have generally been sufficient for defendants to be tried in military court. When a defendant commits a crime specifically related to war, military tribunals have historically been viewed as the more appropriate forum to bring the defendant to trial than a traditional federal court.
Ex parte Milligan was the earliest case in which the Supreme Court addressed the question of when a defendant could be tried in a military court. In Milligan, the Court set forth three specific situations where a citizen could be subject to military court: 1) martial law, 2) occupied territory, and 3) laws of war (Ex parte Milligan). Absent these three specific situations, however, if the federal courts are functioning and operational, citizens must be tried in federal court (Ex parte Milligan).
The Milligan holding was later qualified in Ex parte Quirin. The Quirin case involved German saboteurs who entered the United States without their uniforms and were later captured and tried by military commission (Ex parte Quirin). The question was whether it was proper to try these defendants in military court. The Supreme Court held that because the German saboteurs were unlawful combatants who violated the laws of war by entering the nation without their official uniforms, they could be properly brought to trial by a military commission (Ex parte Quirin). The Quirin case, therefore, provides strong support for the proposition that enemy combatants can be tried in military court.
Persons declared as enemy combatants have brought a number of statutory and constitutional challenges to their detention statuses. In Hamdan v. Rumsfeld, the Supreme Court attempted to flush out what procedural due process protections a US citizen deemed an enemy combatant is entitled to (Hamdan v. Rumsfeld). Hamdan was an American citizen who was arrested in Afghanistan while fighting against the US with Taliban forces (Hamdan v. Rumsfeld). US officials captured Hamdan and brought him to Guantanamo Bay detention facility. The President, acting under the authority of the AUMF, then deemed Hamdan an enemy combatant. The significance of the enemy combatant status is that an enemy combatant can detained until the end of the conflict without official charges. Hamdan then challenged the President’s authority pursuant to AUMF to declare him an enemy combatant.
In addressing this issue, the Supreme Court held that a declared enemy combatant can be held for the duration of the conflict and no charges need to be brought against them (Hamdan v. Rumsfeld). The authority for this continued detention comes directly from the AUMF and the Commander in Chief power of the President. The Court held that the specific language of the AUMF, “all necessary and appropriate force” encompassed holding and detaining persons who were deemed enemy combatants (Hamdan v. Rumsfeld). In order to fight the “War on Terror” effectively, the President must have the power to detain enemy combatants and prevent enemy combatants from returning to the battlefield.
Traditional warfare has been replaced with the modern “War on Terror,” where the enemy is often unknown and may be among us. Recognizing the inherent difficulties in combating terrorism, Congress, in passing the AUMF, gives the President the necessary authority to deem terrorists as “enemy combatants.” Since there is longstanding precedent that unlawful combatants can be tried by military commission, enemy combatants should also be able to be tried by military commission. Trial by military commission affords the government a swift forum to prosecute and carry out justice against dangerous terrorists.
Works Cited
Authorization for Use of Military Force Against Terrorists, Pub.L. 107-40, 115 Stat. 224
2001. Web. 9 Mar. 2016.
Boumediene v. Bush, 553 U.S. 723. Supreme Court of the US (2008). Web. 9 Mar. 2016.
Ex parte Milligan, 71 U.S. 2. Supreme Court of the US (1866). Web. 9 Mar. 2016.
Ex parte Quirin, 317 U.S. 1. Supreme Court of the US (1942).Web. 9 Mar. 2016.
Hamdan v. Rumsfeld, 548 U.S. 557. Supreme Court of the US (2006). Web. 9 Mar. 2016.
