thedrifter
01-03-04, 07:15 AM
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:
continued.....
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:
continued.....