this issue it grants to Congress the power to “declare war.' "26 By that phrase, the Constitution's Framers understood the power to create a state of war between the United States and another power, for they carefully distinguished this power from the power to "make" war, i.e., to use military force, which is vested in the President as Chief Executive and Commander in Chief of the armed forces.27 This division of authority made eminent sense, since, unlike the use of armed force, a formal declaration of war worked a number of important legal changes (permitting, for example, the expulsion or internment of enemy aliens and the seizure of their property) more appropriate to the legislative, rather than the executive, branch.

The actual meaning of this constitutional provision, however, became a matter of dispute almost immediately among the Founding generation itself. For example, in 1793 James Madison and Alexander Hamilton clashed, in the "Helvidius/Pacificus" debate, over whether President Washington had the power, on his own authority, to issue a proclamation of neutrality with respect to the war between Britain, her allies, and Jacobin France. These early disagreements included the question of whether a declaration of war was necessary for any U.S. military action. During the conflict between the United States and the Barbary Pirates, for instance, the Jefferson Administration evidently took the position that a declaration by Congress was necessary before the United States could seize Algerian vessels on the high seas. Alexander Hamilton took particular umbrage at this view, writing that a state of war "between two nations is completely produced by the act of one-it requires no concurrent act of the other." He further noted that the Constitution did not incorporate such a rule, claiming that "[t]he framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience. [W]hen a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary." 28

Hamilton's view, at least for certain purposes, prevailed. The Supreme Court recognized very early that some form of a "state of war" could exist without a formal declaration by the United States.29 Barely 10 years after the Constitutional Convention, a naval war erupted between France and the United States-the so-called Quasi-War. In two cases involving the disposition of ships captured by the U.S. Navy during this conflict, the Supreme Court acknowledged that the United States could wage a limited war, which was not based on a formal declaration, but was instead governed by several federal statutes. It made clear, however, that a limited war brought only restricted war-related powers into play. As explained by Justice Chase in Bas v. Tingy

Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects and in time. If a general war is declared, its extent and operation are only restricted and regulated by the jus belli, forming a part of The Law of Nations; but if a partial war is waged, its extent and operation depend on our municipal [domestic] laws. 30

Similarly, as Justice John Marshall explained in Talbot v. Seeman

The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.31

Thus, although the United States government can only obtain all of the potential "war powers" available to it under the Constitution through a formal declaration of war, it may nevertheless exercise some lesser measure of that power during a partial or limited war.32 With respect to any particular power, the test articulated by

26 U.S. Const., Art. I. § 8, cl. 11.

27 See James Madison, Notes of Debates in the Federal Convention 476-77 (Koch ed., 1966). 28 See Alexander Hamilton, "The Examination, No. 1, 17 Dec. 1801," reprinted in, 3 The Founder's Constitution (Kurland & Lemer eds. 1987).

29 The Supreme Court also has recognized that a "state of war" could be created by the actions of another power. See The Pedro, 175 U.S. 354, 363 (1899) (recognizing that war with Spain began prior to actual declaration by Congress based upon declaration of Spanish government). 30 4 U.S. 37, 43 (1800).

315 U.S. 1, 28 (1801) (emphasis added).

32 The Court has indicated, however, that during the limited war the relevant limitations must be scrupulously respected. In Little v. Barreme, 6 U.S. 170, 177 (1804), for example, the Supreme Court struck down a presidential proclamation authorizing the interception of vessels sailing from or to France, reasoning that Congress had, by statute, allowed only the interception of vessels sailing to French ports.

the Supreme Court is whether it is necessary or "actually applicable" to the level of hostilities Congress has authorized. A reasonable argument can be made that this lesser measure includes the right to subject unlawful combatants to trial by military courts, because the laws of war dealing with unlawful combatants are so basic to any level of hostilities-dealing with the questions of who may lawfully take part in a conflict, and how they must be treated upon capture or defeat-that they always apply when the United States is engaged in an armed struggle. This would support the legality of subjecting unlawful combatants, such as the members of alQaeda, to trial by military courts where Congress has authorized hostilities, even though it has not formally declared war. 3

33

Nevertheless, subjecting civilians-even as unlawful combatants-to military justice, and particularly to the type of military commission at issue in Quirin, is an extraordinary measure in recent times. Military commissions were used in such conflicts during the early- to mid-19th century. In 1862, for example, 37 Dakota Sioux Indians were executed in Minnesota. These individuals were tried before a fivemember military commission for the massacre of settlers along Minnesota's western borderlands.34 Yet, there are relatively few instances of such proceedings since the 1860s. Quirin represents the only instance in which the Supreme Court specifically approved, in the face of a constitutional attack, the use of military commissions in the United States to try individuals not otherwise subject to military justice. Moreover, in the years after Quirin was decided, the Court returned to a far more circumspect attitude toward the government's ability to employ military justice vis-avis individuals not actually enrolled in military service. In Reid v. Covert (1952), for example, the Court ruled that the civilian dependents of armed service members, even when overseas, could not be subjected to military courts, noting that:

the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language of Art. I, §8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.

35

Moreover, the fact remains that the Quirin Court itself addressed a situation that involved a formally declared state of war. Following Hitler's declaration of war on the United States on December 11, 1941, Congress immediately declared that a state of war existed between the United States of America and the government of Germany, in addition to authorizing the President to use "the entire naval and military forces of the government to carry on war against the Government of Germany.” This fact was noted by the Quirin Court in its decision, in particular with respect to its discussion of the constitutional issues presented by that case:

The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against The Law of Nations, including those which pertain to the conduct of war.36

Citing other opinions from World War I and II, Chief Justice Rehnquist recently wrote that "[without question the government's authority to engage in conduct that infringes civil liberties is greatest in time of declared war." 37 Thus, it is possible that the Court would have reached a different conclusion i11 1942 if Congress had not invoked the full war powers available to the United States, under the Constitution as well as The Law of Nations, through a formal declaration of war. Although Congress, in its Joint Resolution of September 18, 2001, has invoked a broad range of the war powers of the United States, authorizing the President "to use all nec

33 It should also be noted that the Supreme Court has ruled that the United States could be considered to be "at war" without a formal declaration in the case of undeclared or "limited" wars with the Indian Tribes. See Montoya v. United States, 180 U.S. 261, 267 (1901) (“We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the Government has deemed it necessary to dispatch a military force for their subjugation, is sufficient to constitute a state of war.").

34 See generally, Carol Chomsky, "The United States-Dakota War Trials: A Study in Military Injustice," 43 Stan. L. Rev. 13 (1990) (criticizing the practice of using military tribunals for this purpose).

35 354 U.S. at 21.

36 317 U.S. at 26 (emphasis added).

37 Rehnquist, All the Laws But one, supra at 218.

essary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001," it has not formally declared a state of war to exist.

Perhaps even more important than the precise differences between the current situation and that in 1942 is that the Supreme Court has become far more protective of civil rights and civil liberties in the past 50 years. It can even be said that it views the protection of civil rights and civil liberties as its special and unique role in the national government and the federal scheme. The Pentagon Papers case is an example of how much more protective of civil liberties the Court was in 1971 than it was earlier in the century. The national security risk posed by the disclosure of a classified history of America's involvement in Vietnam was probably far greater than that posed by journalists and pamphleteers opposed to World War I. Nevertheless, the Court refused to defer to the judgment of the executive branch in 1971 and created a standard that was either impossible for the government to meet (in the case of two concurring justices) or was at least much more difficult to meet. 3

38

Indeed, Chief Justice Rehnquist ends his book on civil liberties in wartime by contrasting the modern Court with earlier judges who seemed to adopt the Latin maxim, Inter arma silent leges: In time of war the laws are silent. His concluding remarks have an independent significance given his role on the High Court.

[T]here is every reason to think that the historic trend against the least justified of the curtailments of civil liberty in wartime will continue in the future. It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the court on the basis for the government's claims of necessity as a basis for curtailing civil liberties. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.39

Given the evolution of the Supreme Court's exercise of authority, we believe some justices of the Supreme Court today might not reaffirrn Quirin even if the facts were identical to that in 1942. This may also render earlier historical precedents of limited value in predicting which way the modern Court would rule.

Despite this evolution in the Supreme Court's independent role, we believe a majority of the Court today would feel constrained to follow its decision in Quinn if Congress declared war on the Taliban/al-Qaeda. But the absence of a formal declaration of war might lead several justices to distinguish Quirin, even if we believe the distinction is not constitutionally significant. Modern judicial activists have discarded far more established and well-reasoned cases than Quirin. Thus, in the absence of a formal declaration of war, we simply cannot say with a high degree of certainty which way the Court would rule.

CONCLUSION

Although Congress has not yet issued a formal declaration of war, there is no doubt that, as a matter of international law, an armed conflict currently exists between the United States and the Taliban/alQaeda regime in Afghanistan. It also is clear that members of al-Qaeda have acted as "unlawful combatants." Whether they can be treated as unlawful combatants under the domestic law of the United States, and be subjected to trial by military courts or commission, however, depends upon whether a "state of war" exists pursuant to the United States Constitution.

There is very early support in the judicial precedents of the Supreme Court, actually decided during the active political careers of the Constitution's Framers, suggesting that a "state of war" can exist between the United States and a foreign power without a formal declaration of war by Congress, albeit of a limited character. Since the question of who is a lawful and unlawful combatant is central to the law of war, whenever it is applicable, it can reasonably be argued that an undeclared war is sufficient, as a matter of constitutional law, to justify the use of military commissions to try such individuals in the United States.

At the same time, the use of military courts to try non-military personnel is an extraordinary process that has been used in only very limited circumstances during U.S. history. The only direct and definitive authority permitting such trials remains the Supreme Court's decision in Ex parte Quirin. That case involved a state of for

38 New York Times Co. v. United States, 403 U.S. 713 (1971). It is true that the Pentagon Papers case involved a prior restraint of speech, and this does distinguish it somewhat from the facts of the World War I cases, but the majority that ruled against the United States in 1971 would not have likely upheld the conviction of Jacob Abrams in 1919. A simple comparison of the majority's discussion of the issues in Abrams v. United States, 250 U.S. 616 (1919) with that in the Pentagon Papers case will reveal a marked difference i11 the deference the Court accords the executive branch.

39 Rehnquist, All the Laws But one, supra at 224-25.

mally declared war, and this point was noted by the Court as part of its ruling. Other practical questions might arise in the absence of a formal declaration of war, including with whom the United States is at war. A formal declaration of war would resolve such questions and allow the President to try al-Qaeda terrorists-who have violated the law of wars in military tribunals.

In the absence of a formal declaration, we believe the correct constitutional answer is less clear, and that it is even less obvious how the Supreme Court would rule. Thus, we believe a formal declaration of war should be sought before the United States employs military courts to try al-Qaeda members.40 This would place such tribunals, which clearly represent a departure from this country's normal legal processes and traditions, on the best possible constitutional basis.

Statement of Charles D. Siegal, Munger Tolles & Olson, Los Angeles, CA, on behalf of Human Rights Committee

INTERNATIONAL LAW AND CONSTITUTIONAL LAW RAMIFICATIONS OF THE PRESIDENT'S Military Order of November 13, 2001 I Dear Senator Leahy, Senator Feinstein and Other Members of the Judiciary Committee:

The Human Rights Committee of the American Branch of the International Law Association writes to express its views concerning the November 13, 2001 Military Order on The Detention, Treatment, and Trial of Certain Non-Citizens In The War Against Terrorism (“Order”). For the reasons that follow, we consider the Order to be in violation of long-standing principles of international law and to raise significant and troubling United States constitutional law concerns.

The Human Rights Committee of the American Branch of the International Law Association ("Human Rights Committee") has a longstanding interest in the progressive development of the international legal order, the rule of law and the protection of fundamental human rights. It is comprised of individuals from the academic, public and private sectors who have extensive experience in the field of international law and, specifically, human rights law. Members of the Human Rights Committee have taught subjects such as international law, foreign relations law, human rights law and constitutional law and have written extensively in these fields. They have participated extensively at the trial and appellate court levels, including the United States Supreme Court, and have litigated cases involving the tights of aliens under domestic and international law. In the past, members of the Committee have testified before the Foreign Relations Committee of the United States Senate on a variety of issues, including human rights treaties.

The Human Rights Committee would like to express its serious concerns regarding the Order. While the Committee recognizes the importance of the struggle against terrorism, eve have substantial concerns that the Order violates the United States' obligations under international law and the Constitution.

1. INTERNATIONAL LAW

Military tribunals are generally suspect under human rights treaties, international criminal law, and under established human rights law. We consider the Order to be in clear violation of each of those bodies of law.

A. HUMAN RIGHTS LAW

1. Due process

The Order fails to comply with Article. 14 of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party and which sets forth a minimum set of customary and treaty-based human rights to due process guaranteed to all persons by customary international law, the ICCPR, and thus also by and through Articles 55(c) and 56 of the United Nations Charter. This treaty has become increasingly important as a source of human rights and the United States should, as a matter of policy, and must, as a matter of legal obligation, follow it.

40 It should be noted, however, that once a state of war is formally declared, there appears to be no requirement that Congress declare war against each state in which al-Qaeda operatives may be discovered. Once Congress has invoked the full range of war powers by a formal declaration, those powers would continue to apply until the armed conflict is concluded. During this period, under Quirin's teaching, anyone who actually qualifies as an unlawful combatant in the context of that conflict could be subjected to trial by military commission.

The rights guaranteed by the ICCPR include the right to a fair hearing by an independent and impartial tribunal, the right to know, the charges, the right to have defense counsel of choice, the right to examine and cross examine witnesses, the right to present witnesses and other evidence, and the right to an appeal to a higher tribunal. The Order fails to meet the ICCPR's minimum due process requirements in virtually all respects.

The Order is also defective as it is overly broad and open-ended, with no defined standards of uniform application. Under this Order, the Secretary of Defense is empowered to be the sole authority to decide if there is reason to believe that any nonUnited States citizen (including long-time United States lawful permanent residents) anywhere in the-world might have committed or attempted to commit "violations of the laws of war and other applicable laws." Individuals who are deemed subject to this Order include any non-citizen who has "aided or abetted, or conspired to commit acts of international terrorism. . .that threaten to cause or have as their aim to cause. .adverse effects on the United States foreign policy or economy." Under the language of the Order, a long-term United States permanent resident who has.. written articles and made speeches criticizing the foreign policy of the United States and calling for a worldwide boycott of American-made products and for other forms of direct action might be subject to prosecution before a 'military court. It is not enough to say that no United States Secretary of Defense would be so rash or foolish enough to pursue such a prosecution. The fact that such an act could be treated as a terrorist act subject to the jurisdiction of the specially created military tribunal proves the point that such a system lacks the checks and balances necessary to prevent such an injustice.

The Order denies the accused the basic international human right to appellate review. The Order dispenses with the need for a unanimous verdict by providing that a conviction and sentence, including the death penalty, maybe imposed upon only a two-thirds vote. This is in sharp contrast to the procedures followed not only by our federal and state courts, but also by our military courts under the Uniform Code of Military Justice. We note that Section 836 of the United States Code, relied upon by as authority for the Order, requires that military commissions shall, if practicable, apply the principles of law and the rules of evidence recognized in the trial of criminal cases in the United States district courts. Nowhere does the Order articulate a basis why it is not practicable to apply the principles of law and-rules of evidence followed in the district counts. Indeed, the recent successful prosecution in the Southern District of New York of the perpetrators of the African Embassy bombings demonstrates that the principles and rules followed in the United States district courts can most certainly be applied to other terrorists as well.1

2. NON-DEROGATION

Major human rights treaties contain "derogation" clauses that govern the suspension of rights during states of emergency that threaten the life of the nation. The Article 4 of the ICCPR limits derogation as follows:

1. Rights may be suspended only during a state of emergency that threatens the life of the nation. To justify a suspension of fair trial rights guaranteed by the ICCPR, the United States must prove that it faces a threat to the life of the nation. This is a very high threshold. An ongoing risk of terrorist violence is a permanent condition for contemporary democratic states. The "life of the nation" is not imperiled by the United States military action in alliance with the Afghan Government. 2. Certain rights are non-derogable and may not be suspended even if the life of the nation is at stake. These include, most relevantly in the current context, the right to life; the prohibition on torture and cruel, inhuman and degrading treatment or punishment; the prohibition on retroactive criminal penalties; the right to recognition as a person before the law; and freedom of thought, conscience, and religion.

3. Derogation measures may not be applied in a discriminatory manner. Where rights are suspended during a genuine state of emergency, derogation measures may not be applied in a manner that discriminates on the basis of race, color, sex, language, religion, or social origin.

4. Any derogation measures must be strictly required by the exigencies of the situation. The ICCPR and regional human rights treaties establish a very strict rule of proportionality to emergency measures taken in derogation of human rights. Only measures that are vital to preserving the life of the nation are permitted.

'Further, with respect to prisoners of war, the Order is violative of the 1949 Geneva Prisoner' of War Convention, especially articles 102 and 130.