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acts of terrorism transcending national boundaries. 22 The USA PATRIOT Act of 2001 further expands federal criminal prohibitions on terrorism.23

In addition, Congress had made a formal declaration of war by the time that President Roosevelt created the Quirin military commission.24 Congress's declaration authorized a general war and provided Roosevelt with the full panoply of wartime powers available to a president. By contrast, currently Congress has authorized only a limited war against those who planned or aided the terrorist attacks on September 11. In a limited war, where Congress authorizes specific types of military action, the executive branch must confine its actions to those specifically authorized by Congress.25

It is also important to note the difference in scope between President Roosevelt's order creating the military commission for the Nazi saboteurs, and President Bush's order. While President Roosevelt had robust statutory authority to create a wideranging set of military tribunals for saboteurs and spies, he chose to create a single tribunal to deal with the eight specified saboteurs who were already in custody. On the other hand, President Bush, lacking any statutory authority, is attempting to create military commissions for unnamed and unnumbered defendants accused not just of particular crimes for which Congress has authorized military tribunals, or even for crimes against the law of war, but for any international terrorism against the United States. International terrorism against the United States does not necessarily constitute a violation of the law of war. Thus, President Bush's order goes beyond the outer reaches of his constitutional authority. While the Roosevelt order in Quinn had a strong statutory basis, the Bush order on military commissions goes beyond his authority as President.

Finally, I draw your attention to these words from the Supreme Court's decision in ex pane Milligan, which can serve as an important guide in these difficult times: The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. . [T]he government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.

26

In this time of uncertainty and fear, it is as important as ever for Congress to ensure that the executive branch abides by the constitutional limits on its authority.

Statement of The Federalist Society

NATIONAL SECURITY WHITE PAPERS

THE WAR ON TERRORISM: LAW ENFORCEMENT OR NATIONAL SECURITY?

[The Federalist Society takes no position on particular legal or policy issues. The views expressed herein are those of the authors alone]

George Terwilliger-White & Case, Washington, D.C. served as Deputy Attorney General in the Bush I Administration.

Theodore Cooperstein-"Office of Theodore Cooperstein, Attorney at Law, Washington D.C., has served as Assistant General Counsel, Federal Bureau if Investigation

Shawn Gunnarson-White & Case, Washington, D.C.

Daniel Blumenthal-Kelley Drye & Warren, New York. The views expressed herein are those of the author alone and do not reflect the views of Kelleye Drye & Warren.

Robert Parker-Paul Weiss Rifkind Wharton & Garrison, Washington, D.C. The horrific events of September 11th were immediately labeled “acts of terrorism," but as events unfolded, they were quickly revealed as "acts of war." The anthrax attacks that followed were surely acts of terrorism, but not necessarily acts

22 Pub. L. 104-132, § 702, creating 18 U.S.C. § 2332b.

23 Pub. L. 107-56, $$ 802, 803, 805, 808, amending 18 U.S.C. §§ 2331, 2339, 2339A, 233913. 24 Proclamation 2561 (July 2, 1942), 7 Fed. Reg. 5101 (1942); Appointment of a Military Commission (July 2, 1942), 7 Fed. Reg. 5103 (1942).

25 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (striking down President Truman's Executive Order taking possession of steel mills during the Korean War because Congress had refused to grant the President this authority). See also Little v. Barreme, 6 U.S. 170 (1804).

26 71 U.S. at 120-21.

of war by a foreign belligerent. As of this writing, investigators have been pursuing the possibility that the anthrax attacks are acts of domestic terrorism with no organizational links to those who engaged in the acts of war on September 11th.

Federal officials face the unprecedented situation of having to respond immediately to crisis events that are both war and crimes. This new paradigm of warfare has blurred the previously more-or-less clear line between national defense and law enforcement. And the idea of national defense is changing to encompass a broader range of threats than historically posed by a warring nation-state.

Historically, "war" has been only between states. ("Every contention by force between two nations, in external matters, under the authority of their respective governments.") Except for civil wars, acts of individuals and groups not qualifying as states have been deemed crimes either against the law of a particular state or violators of the "law of nations," e.g. piracy (much terrorism has been state-sponsored).2 This country's initial legal response to terrorism in the 1980s was a law enforcement approach which extended the jurisdiction of the United States to criminal acts against Americans abroad.3

The realization, however, that non-state and clandestinely state sponsored groups now have the ability and willingness to employ means of mass destruction has dictated the recognition that states no longer have a monopoly on war. Therefore, it has become appropriate to use war powers against foreign terrorist organizations. Using those war powers against foreign terrorists operating within the United States calls for an understanding of when actions of force or terrorism by non-state groups should be treated pursuant to national security powers, rather than within the domain of law enforcement.4

The use of national security powers against groups of foreign belligerents found within the United States raises dangers which could result from militarizing the homeland.5 Nevertheless, as the Framers intended, the Constitution both gives the federal government all the powers necessary to defend the country,6 and also limits the possibilities for abuse of those powers through separation of powers and federalism. It is understandable that the initial response to the unprecedented attacks within the U.S. by foreign forces on September 11th emphasized centralized command and control. As we adjust to the new reality, an effective national security strategy requires a range of responses based on recognizing the relationship between:

1) national security powers and law enforcement powers; 2) the rights of citizens and non-citizens; and

3) centralized and decentralized defenses.

I. INTERNATIONAL TERRORISM IS A MATTER OF NATIONAL SECURITY, RATHER THAN MERELY CRIMINAL LAW ENFORCEMENT

over

Debate about particular anti-terrorism measures often rests on an incomplete understanding of the constitutional principles involved as well as on an judicialization of political and policy issues. Our national leaders have a constitutional responsibility to secure the country from foreign threats, and the Framers of our Constitution often referred to this obligation during the Philadelphia convention, in The Federalist Papers, and elsewhere. Indeed, the Preamble to the Constitution makes this very point when it states that the Constitution was ordained and established to "insure domestic tranquility" and "provide for the common Defence." In other words, we must not only account for the traditional rights that citizens enjoy, but also the broad national security power that the Constitution grants to the government to take action against unlawful belligerents acting on U.S. soil. Resolution of the significant constitutional questions raised by measures to address the current terrorist threat thus requires a clear understanding of both the powers that the Constitution grants to the government when national security is at stake, and the circumstances in which the exercise of those powers do and do not infringe our civil liberties. This is consistent with how the Framers viewed our Constitutional system-namely, that structural issues are inextricably intertwined with questions relating to the protection of freedom. It is axiomatic that the federal government

1 Bas v. Ting, 4 U.S. (4 Dall.) 37, 40 (1800) see (opinion of Washington, J.).

2 For statutes on piracy, see 18 U.S.C. § 1651-1661.

3 See "Diplomatic Security and Antiterrorism Act of 1986," Pub. L. N. 99–399, 100 Stat. 853. 4 For discussion of whether a formal declaration of war by Congress is required, an issue beyond the scope of this paper, see generally Bas v. Tingy, 4 U.S. 37 (4 Dall.) (1800) (opinion of Washington, J.); The Prize Cases, 67 U.S. (2 Black) 365 (1862).

5 See Federalist No. 8.

6 See Federalist Nos. 23-24.

7 See Federalist No. 51.

has all the constitutional power necessary to defend the nation, whether the threat comes from foreign attack or from the breakdown of internal order. As Alexander Hamilton wrote in Federalist No. 23, the powers of the federal government to provide for the common defense are complete.

These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defense.

This "truth," according to Hamilton,

rests upon axioms as simple as they are universal. The means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which, it is to be attained.8

The Supreme Court has confirmed Hamilton's view that the Constitution confers on the federal government an “independent substantive power” with respect to national security, and specifically with respect to the "persons or property of [an] enemy found, at the time, within the territory" of the United States. Providing for the security of one's country is an inherent feature of national sovereignty, and the Constitution expresses or confirms that fairly obvious point by vesting in a President the general Executive power under Article Two. 10

In previous wars, except the Civil War, a fairly discernable line has existed between external defense and internal police. Thus, the Supreme Court has distinguished "between the powers of the federal government in respect to foreign or external affairs and those in respect of domestic or internal affairs." 11 This same division has passed a law that limited presidential use of military forces for domestic law enforcement to situations in which ordering means of law enforcement could not restore order. 12 During the Civil War and Reconstruction, Congress expanded the internal use of military forces. In 1878, after the domestic crisis had passed, Congress enacted the "Posse Comitatus Act," 13 which prohibits the use of the military (expressly, just the Army and Air Force) to execute the laws of the United States, the states or the territories, except as specifically provided. 14

The federal government does have law enforcement powers, but those powers have limits. In particular, the federal government has no general police power.15 Congress must find the source for enacting criminal law either in particular enumerated powers or in the means necessary to implement those powers.

16

In matters of national security, on the other hand, the powers of the federal government are broader. The Constitution grants to the Executive and Legislative Branches, as the preamble announces, specific powers to "insure domestic Tranquility and provide for the common Defence." Most notable and relevant for present purposes is the power of the Congress under Article I, section 8 to declare war, but also its power to "define and punish. . .Offenses against the Law of Nations" and to "make Rules concerning Captures on Land and Water." Likewise, the role of the President, under Article II, section 2, as the "Commander in Chief of the Army and the Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" reflects the Constitution's grant of authority to the Executive Branch to address threats to national security independent of the President's separate role as chief magistrate and prosecutor of criminal laws.

8 Federalist No. 23.

9 Brown v. United States, 12 U.S. [8 Cranch] 110, 125–126 (1814).

10 See United States v. Curtis-Wright Export Corp., 299 U.S. 304, 315–19 (1936).

11 Curtiss-Wright Export Corp., 299 U.S. at 315.

12 Brian L. Porto, Annotation, Construction And Application Of Posse Comitatus Act (18 U.S. C.A. § 1385), And Similar Predecessor Provisions, Restricting Use Of United States Army And Air Force To Execute Laws, 141 A. L. R. Fed. 271 (1997). Use of troops domestically for purposes other than law enforcement would be a different matter. For that issue, see the briefing paper prepared by Paul Stevens that appears on our website, http://www.fed-soc.org

13 "Posse Comitatus" means "power of the country."

14 18 U.S.C. § 1385.

15 See United States v. Morrison, 120 S. Ct. 1740, 1754 (quoting United States v. Lopez, 514 U.S. 549, 566 (1995) (“[t]he Constitution withhold[s] from Congress a plenary police power"). 16 See McCulloch v. Maryland. U.S. (4 Wheat.) 316 (1819).

This constitutional authority to provide for the national defense and to protect national security in the face of enemy attack extends not only to the conduct of war by traditional military means, but also to the treatment of individuals who prosecute the attack on the enemy's behalf. “An important incident to the conduct of war is the adoption of measures by the military commander, 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." 17

The authority that the Constitution confers on the federal government to prosecute the enemy by all appropriate means applies to the enemy found at home as well as those encountered abroad. 18 Quirin concerned a group of saboteurs who were landed by German U-boats on U.S. beaches during World War II. Their assignment from the German military authorities was to destroy military targets and war-production facilities on the U.S. home front. All of the saboteurs were Germans except one, Haupt, who claimed to be a naturalized U.S. citizen. After capture by the FBI, the belligerents were placed in military custody. Pursuant to an Executive order, they were tried by a military commission, which found them all guilty and sentenced them to death. They then filed petitions for writs of habeas corpus, challenging the authority of the military tribunal, and the tribunal's denial to them during its proceedings of the Constitutional rights specified in Article III and the Fifth and Sixth Amendments.

The Supreme Court upheld the military commission's authority. The Court concluded that the President, as Commander-in-Chief, has the power to enforce all laws relating to the conduct of war, "and to carry into effect...all laws defining and punishing offenses against the law of nations including those which pertain to the conduct of war." 19 This power, the Court held, includes the authority "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." 20

The Court likewise rejected the would-be saboteurs' claim to the traditional constitutional rights enjoyed by an accused in the criminal justice system. The Court concluded, first, that the saboteurs were not criminal defendants, but rather were unlawful belligerents accused of violating the laws of war. "[A]n enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, is familiar examples of belligerents who are generally deemed. . .to be offenders against the law of war subject to trial and punishment by military tribunals." 21

The Court next rejected the unlawful combatants' claim that, having been captured by FBI agents on U.S. soil, they enjoyed constitutional rights under Article III and the Fifth and Sixth Amendments. "We conclude that 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, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury." 22

Finally, the Court in Quirin readily rejected Haupt's claim of constitutional rights by virtue of his purported U.S. citizenship. U.S. citizenship, the Court held, "does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war." 23 By virtue of his allegiance to a foreign enemy and his taking up arms on behalf of that enemy, therefore, Haupt was subject to military punishment, rather than criminal justice.

This distinction between an unlawful belligerent and a traitorous civilian is wellgrounded in constitutional precedent, and can be viewed as the definitive boundary between the government's national security power and its law enforcement author

17 In re Yamashita, 327 U.S. 1, 9 (1946); accord Johnson v. Eisentrager, 339 U.S. 763, 774– 75 (1950) ("Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed throughout our history, essential to war-time security"); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870) ("Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may legitimately be prosecuted. It therefore includes the right to seize and confiscate all property of an enemy and to dispose of it at the will of the captor").

18 Ex Parte Quirin, 317 U.S. 1 (1942).

19 Id. at 26.

20 Id. at 28-29.

21 Quirin, 317 U.S. at 30-31.

22 Id. at 45; see also Yamashita, 327 U.S. at 23 (rejecting a Fifth Amendment challenge to the introduction of hearsay evidence in a prosecution before a military commission; "[T]he commission's rulings on evidence and on the mode of conducting these proceedings against petitioner are not reviewable by the courts. .From this viewpoint it is unnecessary to consider what, in other situations, the Fifth Amendment might require[.])"

23 Quirin, 317 U.S. at 37.

ity. In Ex Parte Milligan,24 the Court considered the conviction by a military tribunal of a U.S. citizen, resident in Indiana, who was accused of conspiring to aid the cause of the Confederacy, then at war with the United States. The Court unanimously overturned the conviction. Although the Court divided on the question of the tribunal's authority,25 it concluded that "no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in no wise connected with the military service." 26 The Court in Quirin thus recognized that Milligan presented a different case, and raised different constitutional questions, than did the case before it.27 We can draw from Quirin and Milligan, therefore, a clear distinction between a belligerent who threatens the national security at the service of a foreign enemy, and a civilian whose crime-although it may involve aiding and abetting an enemy in time of war-is subject to the jurisdiction of traditional law enforcement (rather than military) authority. The latter, but not the former, thus enjoys the constitutional protections of an accused, though fraudulent acquisition of citizenship would not afford a belligerent these constitutional protections (a point that is further discussed in the next section).28

The assessment of anti-terrorist measures, both those already enacted and those considered for future implementation, should not be examined exclusively through the lens of the government's traditional law enforcement powers. To the extent that anti-terrorist measures are directed at protecting our nation's security from those in the active service of our enemies, then the government may exercise a constitutional authority that is separate from and independent of its law enforcement powers. The exercise of that authority is not an infringement on the constitutional rights of civilians under Article III or the Fifth and Sixth Amendments, but a vindication of the citizens' collective grant of the powers of defense to the national government.

II. MEANINGFUL DISTINCTIONS EXIST BETWEEN CITIZENS AND NON-CITIZENS IN THE LAW OF THE CONSTITUTION

A. Citizens at Home Enjoy the Broadest Constitutional Protections Against the Federal Government

An American citizen or national is entitled as a constituent of the American polity to the protective restrictions the Constitution imposes on the United States government. Law enforcement accordingly is held to requirements of reasonableness and probable cause in performing searches and seizures against United States nationals. 29

24 71 U.S. (4 Wall.) 2 (1866).

25 The majority refused to consider the scope of the military tribunal's authority in this context, although the minority readily acknowledged the authority of such a tribunal that is "exercised in time of invasion or insurrection within the limits of the United States. . .when the public danger requires its exercise." 71 U.S. at 121 (majority) & 142 (opinion of Taney, C.J. and Wayne, Swayne and Miller, J).).

26 Ex Parte Milligan, 71 U.S. at 121-22.

27 See Quirin, 317 U.S. at 45. (Milligan involved a citizen who "was not an enemy belligerent.. .subject to the penalties imposed upon unlawful belligerents. [Milligan was not] 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. . .martial law might be constitutionally established").

28 The courts have also made clear that they stand ready to patrol the boundary between the exercise of legitimate national security powers directed to unlawful belligerents and the illegitimate use of that authority when directed at citizen civilians. In Quirin, and on two occasions since Quirin, the Supreme Court has recognized its authority to consider habeas corpus petitions filed by enemy aliens who claim they are wrongly held in military custody. In Yamashita, the Court held that Congress "has not withdrawn, and the Executive branch of the Government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus." 327 U.S. at 9. In Johnson v. Eisentrager, the Court pointed out that, despite its rulings in Quirin and Yamashita upholding the authority of the military commissions, in each case the petitioners had the benefit of a hearing at which an Article III court considered their applications and provided them with an opportunity to present reasons for their release from military jurisdiction. 339 U.S. at 780-81.

29 Reid v. Covert, 354 U.S. 1 (1957); Best v. United States, 184 F.2d 131,138 (1st Cir. 1950), cert. denied, 340 U.S. 939 (1951); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 157, (D.D.C. 1976) ("There is no question, of course, that the Constitution applies to actions by the United States officials taken against American citizens overseas.").

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