View Full Version : The Global War on Terrorism and the U.S. Constitution

01-03-04, 07:15 AM
The Global War on Terrorism and the U.S. Constitution <br />
<br />
by LtCol Timothy J. Bailey, USMCR <br />
<br />
When the enemy is all around us, it is important to understand the complexities involved <br />
in countering...

01-03-04, 07:16 AM
There may be situations ‘in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.’14

The treatment of individuals prior to their trial has legal significance. This fact must be emphasized in the GWOT, particularly when it is learned by U.S. military that an enemy combatant is also a U.S. citizen. There will likely be a visceral emotional response by military personnel when it is learned that they have captured a fellow citizen who has taken up arms against our country. It would be unfortunate if the emotions of honorable men and women prevented a subsequent prosecution due to unawareness of the law.

The maltreatment of GWOT prisoners could not only bring unwanted media attention, but it could jeopardize subsequent criminal prosecutions. “Trophy shots” of captured unlawful combatants could provide prima facie evidence for defense attorneys to argue that their client’s due process rights were violated. This would open the door to “fishing expeditions” by defense attorneys and subpoenas served on military personnel to explain their conduct. Until these issues are litigated and the lines become clear, military personnel should be mindful of law enforcement considerations when a U.S. citizen or anyone else to be prosecuted in a civilian court is captured on the battlefield.

Interrogations of Individuals Seized in the GWOT.

In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution of the United States commanding that no person ‘shall be compelled in any criminal case to be a witness against himself. . . . a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . . A confession can never be received in evidence where the prisoner has been influenced by any threat or promise. . . .’15

Individuals captured on the battlefield are valuable sources of information. Consequently, they are subjected to interrogation. In the context of a battlefield capture, the paradigm again is war and not law enforcement. Therefore, a civilian court is unlikely to insist on the custodial interrogation requirements of Miranda v. Arizona16 if a GWOT enemy combatant is subsequently prosecuted in a civilian court. However, if a GWOT enemy combatant were later prosecuted, civilian courts would be loath to allow the use of any statements against the defendant if the statements were produced by “coercion.”

What constitutes coercion? In short, any inducement “engendering hope or fear” constitutes compulsion in determining whether a statement has been coerced.17 A coerced statement is not only excluded from direct usage in the Government’s case in chief in a civilian court, but any evidence derived from it is likewise inadmissible.18 For example, if the interrogation produced a coerced statement that consequently led to the discovery of some physical evidence, the physical evidence would generally not be allowed as evidence in a civilian court. A statement acquired through use of physical torture is always inadmissible in a civilian court19 and probably would be inadmissible in a military tribunal. Statements acquired through prolonged questioning, and other forms of mental coercion, have also have been ruled inadmissible in civilian courts.20

Military operations require actionable intelligence in order to reduce uncertainty and increase the probability of success on the battlefield. Interrogations of enemy combatants are a good source of actionable intelligence. They provide commanders and planners with an almost realtime picture of the battlefield. In the GWOT, interrogations are critical to ascertain the existence of pending operations, the identity and locations of terrorist cells and operatives, levels of terrorist training, what weapons the terrorists possess, etc. Statements made during the course of interrogations are likely to involve some form of coercion and thus are generally inadmissible in a subsequent civilian prosecution. This fact does not suggest that interrogators should refrain from aggressively interrogating captured personnel. The value of the information gathered far outweighs any problems it may cause if there is a later prosecution. However, the military tool should be mindful of this possible negative consequence, and it should be weighed with other considerations when handling an individual whom the military suspects the Government may later seek to prosecute in a civilian court.


[Ahmed] Hijazi’s [U.S.] citizenship highlights the different approaches pursued simultaneously by the administration as it wages its war on terror. In some cases since Sept. 11, American citizens have been arrested and afforded traditional legal rights in the criminal justice system. In others, they have been captured and held indefinitely in military brigs as ‘enemy combatants.’ Now, at least in Hijazi’s case, a citizen has been killed in a covert military action. . . . Even in war, the U.S. government affords greater legal protections to U.S. citizens than foreigners and, in peacetime, the CIA [Central Intelligence Agency] is restricted in the kinds of surveillance and operations it can conduct against U.S. citizens at home and abroad.21

Terrorism is more than just an asymmetric threat to the national security of the United States. Terrorism is a federal crime. In 1986 Congress passed the Omnibus Antiterrorism and Diplomatic Security Act making it a crime to murder:

. . . a national of the United States, while such national is outside the United States . . . [if the murder is] intended to coerce, intimidate, or retaliate against a government or a civilian population.22

Since enactment of this law, and prior to 11 September 2001, a number of individuals, to include Osama bin Laden, have been indicted under this statute.23 Since 11 September, many more individuals, to include U.S. citizens, have been indicted for allegedly violating numerous federal criminal statutes, such as Conspiracy to Levy War Against the United States.24 There is little doubt that the GWOT is a war. However, it is a war with strong law enforcement overtones of which the military should be mindful.

The legal aspects of GWOT are not likely to abate.25 Yale Law Professor Ruth Wedgwood, commenting on the legal issues raised in the Hamdi and Padilla cases, stated that “[i]n ordinary wars, the courts would not even look at a case like this, but in this peculiar war, the issues are less clear.”26 The environment in which the GWOT is being, and will be, fought is unique. The area of operations is worldwide and includes not just Afghanistan, Yemen, etc., but the United States itself. Most enemy combatants are not just unlawful enemy combatants. Some are also criminal defendants. Some are American citizens. In the GWOT, military and intelligence are fighting alongside law enforcement, literally and figuratively. The military and intelligence tools must respect and understand the contributions of law enforcement and ensure that they do not negate the effectiveness of this tool in the national arsenal.


1. The National Security Strategy of the United States of America, Government Printing Office, Washington, DC, September 2002.

2. Some experts on contemporary terrorism would argue that terrorism cannot be defeated in a military sense. A more attainable objective would be to seriously degrade those terrorists groups with a transnational operational capability and with objectives inimical to the United States, followed by a subsequent terrorism containment phase/strategy.

3. The Federal Bureau of Investigation may be conducting an arrest with the Pakistani police while simultaneously U.S. aircraft conduct attacks on al-Qaeda in Afghanistan and intelligence runs an operation against Abu Sayyaf in the Philippines.

4. This disparity suggests that the Government is seeking test cases in order to prompt the judiciary to answer legal issues that are likely to continue to arise during the GWOT.

5. 18 U.S.C. §1385. Use of the Army and Air Force as posse comitatus. “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” Posse comitatus does not apply outside of the United States.

6. For the sake of this paper, “seizure,” “capture,” and “arrest” are used interchangeably.

7. Fourth Amendment, U.S. Constitution. The Fourth Amendment to the Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


01-03-04, 07:17 AM
8. Article IV, 1949 Geneva Convention; see also, Michael Dorf, “What is an ‘Unlawful Combatant,’ and why it matters: The Status of Detained Al Qaeda and Taliban Fighters,” 23 January 2002, FindLaw.com, Legal Commentary. In the GWOT, many of the enemy combatants are probably “unlawful combatants” based on their intentional targeting of civilians, failure to carry arms openly, lack of uniforms, etc.

9. For example, an arrest warrant based on probable cause or a crime committed in an officer’s presence.

10. Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht v. United States, 273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519 (1952).

11. Ker at 440.

12. Frisbie at 521.

13. See United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).

14. See United States v. Russell, 411 U.S. 423, 431–2 (1973).

15. Bram v. United States, 168 U.S. 532, 542–3 (1897).

16. Miranda v. Arizona, 384 U.S. 436 (1966).

17. Bram, 168 U.S. at 558.

18. Counselman v. Hitchcock, 142 U.S. 547 (1892).

19. Brown v. Mississippi, 297 U.S. 278, 286 (1936).

20. Chambers v. Florida, 309 U.S. 227 (1940); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Ward v. Texas, 316 U.S. 547 (1942).

21. “CIA Killed U.S. Citizen in Yemen Missile Strike: Action’s Legality, Effectiveness Questioned,” Dana Priest, The Washington Post, 8 November 2002, page A1.

22. See 18 U.S.C. §2332(a) HOMICIDE. “Whoever kills a national of the United States, while such national is outside the United States, shall . . . be fined under this title, punished by death or imprisonment for any term of years or for life, or both. . . .” This law has been amended numerous times and its scope broadened to criminalize the use of weapons of mass destruction and to proscribe fundraising for terrorists groups.

23. For example, Husayn al-Umari (Alias Abu Ibrahim), the leader of the May 15 Organization, and his bomb courier Mohammed Rashid were indicted for planting bombs on U.S. airliners in the 1980s. Abu Ibrahim presumably is still in Baghdad where his group was headquartered. Rashid was eventually captured and turned over to the United States. See Steven Emerson, “Capture of a Terrorist,” New Times Magazine, 21 April 1991, p. 69.

24. For example, several U.S. citizens in Oregon were recently indicted for allegedly violating sections of the 1986 Omnibus Antiterrorism and Diplomatic Security Act (Amended), specifically 18 U.S.C § 2339B, Conspiracy to Provide Material Support & Resources to Al-Qaida, and for allegedly violating 18 USC § 2384, Conspiracy to Levy War Against the United States.

25. This article is not inclusive of all legal issues to arise during the GWOT. It is an attempt to address some of the major issues that would arise in circumstances involving the handling and treatment of persons captured during this war. There are many other issues, such as right to counsel, the confrontation clause, electronic surveillance, etc. that have not been addressed.

26. Jackman, Tom and Dan Eggen, “‘Combatants Lack Rights, U.S. Argues,” The Washington Post, 20 June 2002, page 1. “There is no right under the laws and customs of war for an enemy combatant to meet with counsel concerning his detention, much less to meet with counsel in private, without military authorities present. The court may not second-guess the military’s enemy combatant determination.” Justice Department Brief.

>LtCol Bailey is an assistant county prosecuting attorney by profession. Since 11 September 2001, he has been mobilized twice, most recently to serve as an intelligence officer with Commander Joint Task Force–180 in Afghanistan.