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A question of allegiance: choosing between dueling versions of "aiding the enemy" during war crimes prosecution.

I.   INTRODUCTION
II.  AIDING THE ENEMY: A CHOICE OF LAW
III. SHADOW ELEMENT
     A. Confusing Treason with Aiding the Enemy
     B. Inherent Allegiance Requirement?

IV.  MAKING THE CHOICE BETWEEN THE UCMJ AND THE MMC
     A. Three-Part Analysis
     B. Aiding the Enemy Compared to Material Support
     C. Bypassing Military Commission Process for Court-Martial
V. CONCLUSION


1. INTRODUCTION

The system for Guantanamo Bay terrorist prosecutions is often equal parts maligned and misunderstood. The resulting attacks have branded the public perception of modem military commissions in many circles as an ugly stepsister to the more accepted courts-martial process and its vaunted Uniform Code of Military Justice (UCMJ). A constant barrage of litigation against the U.S. military commissions highlighted numerous perceived deficiencies in the way accused enemy combatants were detained and prosecuted. (1)

Congress first responded with the Military Commissions Act of 2006, (2) which sought to codify the war crimes procedure and specifications to be used in prosecutions after the Supreme Court decision in Hamdan v. Rumsfeld. (3) When even that "fix" was deemed insufficient, President Obama signed the revamped Military Commissions Act of 2009 (MCA). (4)

The latest act settled many of the inherent issues that previously dogged the process. (5) Critics of the military commissions prosecutions tepidly supported a modified set of rules issued in spring 2010. (6) The 2010 Rules for Military Commissions (RMC) and Manual for Military Commissions (MMC) include a codified list of potential offenses with which to charge alleged "unprivileged enemy belligerents." (7) The 2010 MMC essentially carried over various Law of War violations and other traditional offenses derived from the UCMJ. (8) But out of all the litigation and tweaking, a peculiar choice of law scenario quietly survived. This scenario seemingly affords military prosecutors the ability to charge accused war criminals with "aiding the enemy" under the UCMJ standards rather than their more complex MMC/MCA counterparts. In addition, the Court of Military Commission Review in a June 2011 ruling accepted the general notion of applying historic aiding the enemy standards to aliens holding no duty to the United States. (9)

Part two of this paper analyzes the difference between the UCMJ and MCA charges of "aiding the enemy." Part three addresses the recent trend toward applying the treason standard of duty or allegiance to the United States when considering the UCMJ aiding-the-enemy standard. Part four analyzes the distinctions and choices presented to military prosecutors when considering an aiding-the-enemy charge in regard to an accused war criminal.

II. AIDING THE ENEMY: A CHOICE OF LAW

Article 104 has criminalized "aiding the enemy" since the UCMJ's inception in 1950. (10) This charge, along with UCMJ Article 106 relating to spies, is unique within the confines of traditional military law because the statutory language specifically authorizes trial via court-martial or military commission. (11) These two articles are also among the few that do not start with jurisdictional language such as, "Any person subject to this chapter," (12) "Any member of the armed forces," (13) or other language requiring specific military status. (14) This logically leads to a conclusion that Congress specifically intended the charge of aiding the enemy to be available to military prosecutors when conducting military commissions proceedings. (15)

Article 104's recent history only bolsters this conclusion. The UCMJ version of aiding the enemy has only been amended once, in 2006, when Congress bluntly stated, "This section does not apply to a military commission established under chapter 47A of this title." (16) Thus, the aiding-the-enemy charge as laid out in the new MCA 2006 became the only legally sanctioned method for prosecuting Guantanamo Bay detainees available at the time. That bright-line exclusion of Article 104 should have been the end of it, but a few years later, the approval of MCA 2009 ultimately served to repeal its MCA 2006 predecessor. (17) The MCA 2009 failed to maintain the exclusion of UCMJ Article 104, and thus Congress effectively restored Article 104's scope back to its historic statutory language. (18) Consequently, the current incarnation of the UCMJ specifically authorizes an aiding-the enemy-charge via any type of military commission. (19)

Congress also authorized prosecutors a second MMC alternative, (20) a charge called "Wrongfully Aiding the Enemy." (21) While this version follows the same general statutory guidelines as its UCMJ counterpart, the MCA requires one significant additional element absent from UCMJ Article 104. The MCA explicitly mandates that the accused detainee must be "in breach of an allegiance or duty to the United States," defining that "allegiance or "duty" as "citizenship, resident alien status, or a contractual relationship in or with the United States." (22) That additional allegiance requirement effectively exempts most Guantanamo Bay detainees from being charged with this crime because most are aliens with little to no relationship with the United States. (23)

Therefore, based solely on the statutory language, military commissions prosecutors seeking to charge an accused terrorist operative with aiding the enemy have the option of avoiding the MCA's strict allegiance requirement by simply reverting back to the UCMJ. (24) In fact, the UCMJ appears to provide jurisdiction to apply Article 104 to a detainee otherwise chargeable under the overall MCA 2009, stating, "This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission." (25) The MCM goes on to define the "enemy" as follows:
   "Enemy" includes organized forces of the enemy in time of
   war, any hostile body that our forces may be opposing, such
   as a rebellious mob or a band of renegades, and includes
   civilians as well as members of military organizations.
   "Enemy" is not restricted to the enemy government or its
   armed forces.... (26)


As such, UCMJ Article 104 specifically pertains to hostile personnel who may not be considered lawful combatants or who typically do not follow the law of war such as al Qaeda personnel and terrorist facilitators, who are captured and ultimately detained by U.S. forces. (27)

III. SHADOW ELEMENT

Although Article 104 appears to afford military commissions prosecutors an additional choice of law regarding an aiding-the-enemy charge, a peculiar shadow element relating to "allegiance" and "duty" seems to have wormed its way into the legal discourse. (28) During post-9/ll litigation involving the military commissions process, the subject of aiding the enemy has arisen in the context of Guantanamo Bay detainees plucked from the overseas battlefields. (29) Moreover, the government charged Guantanamo Bay detainees Omar Khadr and David Hicks with aiding the enemy before the MCA 2006. (30) Between the federal civil litigation and the Khadr/Hicks charges, "allegiance" was bantered around as somehow being an element to UCMJ Article 104. (31)

This notion seemingly has its roots in confusion over the similarly situated historic treason statute, despite either the lack of case law applying UCMJ Article 104 to alien combatants or its post-World War II predecessor with judicial overlay or additional common law elements. (32) Adding to the historic confusion, aiding-the-enemy cases prosecuted during the Civil War, Philippine Insurrection, and Seminole War were inconsistent in addressing the issue of loyalty, allegiance or treason. (33) In 2004, the defense in the commission case of United States v. Hicks sought to dismiss the aiding-the-enemy charge by tying it to the allegiance requirements contained in the treason and aiding-the-enemy language of the Articles of War of 1775. (34) However, the issue was not adjudicated as the government withdrew all charges against Hicks due to unrelated court rulings against the military commissions system. The aiding-the enemy-charge against Khadr suffered a similar fate, and once the government was allowed to refile charges in that case, prosecutors opted not to include aiding the enemy. (35)

But perhaps the culmination of this shadow element occurred in 2006 when the Supreme Court in Hamdan v. Rumsfeld briefly referred to aiding the enemy. In a footnote to the plurality opinion, Justice John Paul Stevens commented that "the Government plainly had available to it the tools ... it needed to charge" crimes that included aiding the enemy but did not do so. (36) Stevens goes on to state:
   As Justice Thomas himself observes ... the crime of aiding
   the enemy may, in circumstances where the accused owes
   allegiance to the party whose enemy he is alleged to have
   aided, be triable by military commission pursuant to Article
   104 of the UCMJ.... Indeed, the Government has charged
   detainees under this provision when it has seen fit to do
   so. (37)


Justice Stevens' statement has a few effects. First, it offers Supreme Court validation to using UCMJ Article 104 via a military commission, albeit in dicta. (38) However, it also calls into question the basis of the "allegiance" reference, as well as the degree of such an allegiance. But taking it a step further, after the Hamdan ruling, Congress ultimately demonstrated specific intent through its actions, via MCA 2006, MCA 2009 and the MCM 2008, to maintain the historic UCMJ Article 104 jurisdiction over "any person." The clearest evidence of this intent is the post-Hamdan MCM, where aiding the enemy once again uniquely applies to "all persons whether or not otherwise subject to military law" with no mention of allegiance or duty. (39) At the same time, Congress included the new charge of "wrongfully aiding the enemy" that currently exists in the 2010 MMC. (40) Thus, Congress ultimately decided to incorporate the allegiance or duty requirement only into the military commissions manual, while simultaneously returning explicit language into UCMJ Article 104 permitting its use via court-martial or military commission.

A. Confusing Treason with Aiding the Enemy

As mentioned above, the history of aiding-the-enemy charges within the U.S. context dates back to 1775. (41) The Hicks defense noted that the crimes of aiding the enemy and treason were enacted by the first U.S. Congress in 1790. (42) That act, often referred to as relating to "the crime of treason," stated that "if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort with the United States or elsewhere ... such person or persons shall be adjudged guilty of treason." (43) However, the flaw in the Hicks argument is that Congress later specifically intended to separate treason from aiding the enemy. (44)

This Congressional intent culminated when Congress included Article 104 within the original UCMJ in 1950. (45) Thus, aiding the enemy under Article 104 is a wholly separate offense, with separate elements, from treason. (46) Moreover, this Congressional action provides evidence that treason is essentially one option for the government to use in levying charges against those who both assist the enemy against the United States and hold an allegiance or duty to the United States such as citizenship. (47) Meanwhile, the Congressional action also demonstrates that the intent was to create a separate military justice option for individuals accused of aiding the enemy. (48) As such, Congress fashioned Article 104 as a means of prosecuting anybody engaged in such action, to include U.S. service members as well as those who hold no significant connection to the United States.

Putting this intent into practice, the federal government opted to indict U.S. citizen Adam Gadahn on charges of treason for his alleged role as an al Qaeda propagandist. (49) During World War II, U.S. citizens also were prosecuted on treason charges for their roles in assisting enemy war efforts. (50) Based on U.S. citizenship status, the treason option was available to the government, and, the government used it as a prosecutorial tool. (51) However, David Hicks' Australian citizenship prevented the government from charging treason, with its U.S. allegiance requirement, so prosecutors instead opted for Article 104. (52)

In fact, precedent exists for prosecuting both non-citizens and citizens with aiding the enemy via military commission. (53) During World War II, eight Nazi saboteurs were convicted of aiding the enemy after sneaking into the United States as part of the German war effort. (54) The Supreme Court in a per curiam decision deemed that all the charged offenses, to include aiding the enemy, were appropriate when the president authorized a trial by military commission. (55) The specific charge in that case, listed at the time as a violation of Article 81 of the Articles of War, matches the elements for the current UCMJ Article 104. (56)

B. Inherent Allegiance Requirement?

Since the UCMJ was adopted in 1950, Article 104 has been used only rarely against a non-U.S, citizen for allegedly aiding the enemy. (57) Typically, Article 104 related to U.S. service members under prison of war status who assisted their enemy captors. (58) Moreover, at least one recent commentator, citing Winthrop, asserts that applying UCMJ Article 104 to non-citizens is flawed due the assessment that aiding the enemy "is closely related to treason.'' (59) The argument that this treason nexus inherently requires a duty or allegiance to the United States. (60)

In addition, official views and commentators' opinions regarding the shadow element of allegiance are far from unanimous. For example, an official U.S. statement in 1997 to the International Committee of the Red Cross opined that hostile conditions "may be met by bearing arms or by aiding the enemy with arms, ammunition, supplies, money or intelligence information or even by holding unauthorized intercourse with enemy personnel." (61) The U.S. position in that statement essentially mirrored the elements of UCMJ Article 104 while disregarding the notion of an allegiance or duty. Others argue that even if a duty of allegiance exists, it is merely reciprocal to the duty of protection. (62) That hybrid line of thinking asserts that residents of an occupied nation are obligated to engage only in lawful resistance to the occupying power. (63) Under that lower standard, non- citizen al Qaeda and Taliban operatives in post-invasion Iraq and Afghanistan would have at least some minimal duty to the United States and consequently would have violated this duty by engaging in unlawful hostilities. (64)

But the prevailing view on the subject, again, is best illustrated by Congressional actions during both the creation of Article 104 in 1950 and then the legislation contained within MCA 2006 and MCA 2009. The so-called War on Terrorism and its asymmetrical nature have posed many novel challenges (and will continue to do so). As such, the legal system and its players must adapt traditional methods of criminal justice. (65) The MCA 2006 responded to this need by codifying charges specific to prosecutions in military commissions, such as wrongfully aiding the enemy and material support for terrorism. Congress then withdrew that authority but ultimately reversed itself, allowing UCMJ Article 104 to apply in military commissions. (66) These events demonstrate Congressional intent and adaptation in the face of post-9/11 asymmetrical challenges.

In the latest ruling upholding the conviction in Hamdan, the Court of Military Commission Review linked aiding the enemy with material support for terrorism under the prism of the "historic underpinnings" of the law of war. (67) However, the en banc panel did not factor Article 104 to its holding because Hamdan was not charged with aiding the enemy. (68)

IV. MAKING THE CHOICE BETWEEN THE UCMJ AND THE MMC

If Congress asserted itself through MCA 2009 to permit UCMJ Article 104 to apply to military commissions under the Act, then why offer prosecutors a choice? A review of modem official records fails to provide an answer. However, Congress' inclusion of the "allegiance or duty" language in the military commission version can logically be viewed as a reaction to the shadow element that previously dogged the UCMJ counterpart. By approving two different criminal schemes for aiding the enemy in 2009, Congress directly addressed the issue of allegiance. It codified the choice available to prosecutors: apply the UCMJ version that specifically does not include an allegiance requirement, or elect the military commission rule if circumstances allow. (69)

The forward to the MMC acknowledges that the military commissions rules are "adapted from the Manual for Courts-Martial." (70) The foreword adds that the MMC applies the procedures and rules from courts-martial unless otherwise noted or "where required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need...." (71) This statement bolsters the conclusion that the MMC version of "wrongful aiding the enemy" was deliberately crafted to deviate from its UCMJ counterpart. Meanwhile, Congress' self-reversal of its position on UCMJ Article 104 application firmly establishes the thought process and intent for such prosecutorial choice of law.

Accepting that Congress intended to give prosecutors a choice, why would a government attorney elect to use the MMC version in a military commission? One obvious distinction, at least in theory, is punishment. Article 104 authorizes the death penalty, while the MMC limits the sentence to confinement for life. (72) In practice, however, a conviction of violating Article 104 alone appears never to have resulted in a death sentence, (73) and it seems unlikely to ever be the sole reason a court-martial condemns an accused to death. (74) Therefore, for prosecutors, the question will be the basic one of whether the government can prove the required elements, including whether the accused did indeed hold some tangible allegiance to the United States.

The next issue is a jurisdictional one--whether the MMC version can apply to a detainee under MCA 2009. Remember, the military commissions system requires in part that the accused be an alien unprivileged enemy belligerent. (75) As such, some MMC language is irrelevant surplusage--for example, the Article 26(c)(3) comment that citizenship creates an "allegiance or some duty to the United States" could never pertain in a military commission. (76) However, the government could base an MMC prosecution for wrongfully aiding the enemy on "resident alien status." (77) A "green card" holder is, by definition, an alien, so jurisdiction would attach if he or she were also an unprivileged enemy belligerent. (78) As of summer 2010, a small handful of Guantanamo Bay detainees claimed some sort of U.S. residency at one point or another. In those examples, the MMC charge of wrongfully aiding the enemy could apply, although the MMC requires that this status or "relationship existed at a time relevant to the offense alleged." (79) That requirement would likely preclude charges under the MMC against purported 9/11 mastermind and Pakistani citizen Khalid Sheikh Muhammad because Muhammad's student visa was long expired. (80)

But the MMC's third example of an "allegiance or some duty" springs from "a contractual relationship in or with the United States" at a time relevant to the alleged offense. (81) However, the MMC provides no explanatory details or more specific examples--nothing more than the bare assertion that a contractual relationship suffices. This example does not appear to have a basis in established criminal law or precedent. (82) As a result, the scope and degree of contractual relationship needed to justify charges under the MMC version remain unclear.

For example, a contractual relationship in the United States arguably (although improbably) could be as simple as a pending consumer order paid through a U.S.-based Web site. A more likely example relates to business arrangements, such as forming a corporation. Articles of incorporation are traditionally viewed as licenses with the state, while other fiduciary duties, significant contacts and business contracts also result from the course of business. (83) During World War II era "trading-with-the-enemy" litigation, the U.S. Supreme Court ruled that non-enemy stockholders had a severable interest in corporate assets that were seized by the government in instances where "enemy taint" existed within the company. (84) Similarly, the Court held that the United States can pierce the corporate veil of a foreign corporation organized in a friendly or neutral nation and seize assets when "enemy taint" is found among some officers and shareholders. (85) Although these cases are not directly on point, they could reasonably lead to the conclusion that an alien white-collar businessman with corporate ties to the United States has a significant enough duty within the country to justify wrongfully aiding the enemy charges under the MMC. (86)

A. Three-Part Analysis

Perhaps the best way to determine whether to choose the MMC version over UCMJ Article 104 is to conduct a three-part test. The first step is to assess the detainee's immigration status. If the detainee is a lawful permanent resident or holds himself out as a resident alien based on the stated belief that his "green card" is still valid, then the government could conceivably prosecute him under the MMC version of aiding the enemy. (87)

The second step looks at where the detainee was seized. If the detainee were seized within the United States after entering on his own documents, then one can surmise that he adopted a duty to the United States based on the immigration paperwork used to gain access to the country. (88)

Although the detainee in this scenario may have entered the country to commit a perfidious act, he still adopted a duty during immigration intake. Conversely, however, a situation where the detainee actually snuck into the country, as in Quirin, would likely not impose jurisdiction under the MMC because the infiltrator arguably made every effort possible to avoid adopting a duty to the United States. (89)

For an accused captured overseas, the third step requires reviewing any substantial connections to the United States that the detainee had during his alleged assistance to the enemy. The "substantial connections" element of this test is valuable because in various other contexts courts have found that overseas aliens held a sufficient nexus to the United States to merit certain Fifth Amendment trial rights. (90) For example, al-Aqeel v. Paulson involved a Saudi citizen deemed to have a "sufficient nexus with the United States" based on factors that included frequent travel to the United States, acquiring property in Missouri and being president of an Oregon corporation. (91) In this terrorist financing case, al-Aqeel was permitted to enjoy some additional trial rights based on his substantial U.S. contacts, although the court denied his attempts to gain Fourth Amendment benefits. (92) Because the MMC defines the allegiance or duty requirement as having "some duty to the United States," applying the substantial connections test may very well be appropriate for an MME wrongfully-aiding-the-enemy charge.

The relationship between an accused and his country of citizenship may impose an additional vicarious duty. (93) This theory is similar to that underlying the obligation to offer only lawful resistance to an occupying force, although that also could conceivably apply to the MMC version. (94) In the Hicks case, the government argued that even if an allegiance requirement existed, then Hicks still owed what was tantamount to a duty based on the mutual defense treaty that Australia shared with the United States. (95) Based on that logic, one could argue that Pakistani nationals may be considered to hold this vicarious duty to the United States based on

extensive military aid agreements, direct military/intelligence cooperation, and the notion that their country is regarded as a "vital ally with the U.S. in the war on terrorism." (96)

In the end, however, UCMJ Article 104 appears to be the clearest of the two versions in cases where the accused holds no significant contacts with the United States under the three-part test. The case of Salim Ahmed Hamdan, convicted of providing material support for terrorism (which requires no duty to the United States), for example, failed the three-part test because he was a Yemeni citizen seized overseas with no connection to the United States. The MMC charge of "aiding the enemy" would not apply to similarly situated detainees because of its allegiance requirement. Instead, a military commissions prosecutor could opt for the UCMJ version of aiding the enemy because Article 104 also has no allegiance element. The Court of Military Commission Review supported this choice of alternatives insofar as the en banc panel failed to apply allegiance as an element to the historic offense of aiding the enemy that provided the basis for Article 104. (97)

B. Aiding the Enemy Compared to Material Support

Accepting that Congress intended to provide military commissions prosecutors with a choice when it comes to an aiding-the-enemy charge does not end the inquiry. To truly understand the prosecutorial landscape requires examining the difference between an aiding-the-enemy charge and a charge of providing material support for terrorism. (98) Both UCMJ Article 104 and the material-support charge at MMC(25) contain similar elements relating to the aid and support of an enemy. (99) So how do they differ?

The primary difference, and consequently the individual utility, is imbedded directly into the titles of these respective articles. (100) The material support charge is limited to "terrorism," while in the charges of aiding the enemy, terrorism is inconsequential because the assistance only needs to be on behalf of "the enemy." (101) More specifically, the MMC when describing the elements of the crimes and offenses, requires either assisting in a planned "act of terrorism" or intentionally providing support or resources to "an international terrorist organization engaged in hostilities against the United States." (102)

In contrast, the charges of aiding the enemy have much wider scope. Certainly, organizations such as al Qaeda and the Taliban qualify as "the enemy." (103) For a prosecutor, however, the utility is a scope expanded to include virtually anybody operating in hostile opposition to the United States. (104) Arguably, the government could then charge an accused terrorist operative or associate with both offenses. In this way, the accused is faced with the terrorism-specific charge as well as the separate charge that flatly implicates the accused as an affirmed enemy of the United States.

C. Bypassing Military Commission Process for Court-Martial

Theoretically, when prosecuting alleged war criminals, military trial counsel could bypass a military commission altogether and instead take the accused straight to a court-martial. After all, Article 104 does assert jurisdiction over "any person." (105) A court-martial could better avoid the inherent politics and delay surrounding the military commissions process. (106) In that way, a prosecutor for a case such as a 9/11 conspirator could seek the death penalty for aiding the enemy, and once that court-martial is complete, an Article III court could theoretically get the next crack at the murder and terrorism charges. However, the negative view is the same logic that led to the creation of military commissions in the first place in terms of evidentiary issues and better protecting classified assets. (107)

Once a potential court martial gets to the referral stage relating to a violation of Article 104, a convening authority is required. The Office of Military Commissions (OMC) has its own appointed convening authority tasked with approving all referrals of charges. (108) But the OMC convening authority is limited to military commissions and would not have jurisdiction to authorize a court martial. (109) Therefore, the convening authority for a Guantanamo Bay detainee would likely be the admiral overseeing Joint Task Force Guantanamo. (110) The convening authority is obligated to avoid any undue influence coming from outside sources and should make his or her decision based on practical and legal considerations. (111)

If the Guantanamo Bay convening authority approves charges against a detainee under Article 104, military trial counsel may seek a judicial opinion. The rationale is that the UCMJ has not been used in such a straight battlefield manner involving an enemy force. The judicial opinion would need to grant additional leeway in regard to the rules of evidence because of the in-depth intelligence equities inherent in a military commission but typically alien to the vast majority of courts-martial. But overall, bypassing a military commission for courts-martial may be tactically noteworthy but would likely remain impractical due to the nature and scope of the evidence involved in such complex cases. Moreover, such a tactic also could be considered improper forum shopping.

V. CONCLUSION

The question as to how an alien enemy operative with no apparent duty to the U.S. can be charged with "aiding the enemy" under UCMJ Article 104 is answered by the actual statutory reading of the law. (112) Moreover, the Congressional timeline in dealing with this issue further adds legitimacy to the notion of an intentional split between historic treason and modern aiding the enemy. (113) The 2011 Court of Military Commission Review decision also offered some general support under military jurisprudence for discounting the gravitation toward the allegiance shadow element. The end result is choice.

Title 10 now offers two different and actionable versions of aiding the enemy from which military prosecutors can choose. Because aiding the enemy is viewed in the specific context of open hostilities, it is not surprising that UCMJ Article 104 and its MME counterpart are unique from the federal criminal law arena. As Jabez W. Loane opined in his 1965 article on the subject, treason exists on a parallel track from aiding the enemy. (114) Treason is available to federal prosecutors because it, by definition, relates to quintessential cases of selling out one's own country. (115) Aiding the enemy, in contrast, establishes elements similar in scope to the charge of providing material support for terrorism. As such, Article 104 is merely one more tool for consideration in prosecuting accused war criminals, just as MMC's wrongfully aiding the enemy and material support charges also are included as options. The invisible requirement relating to an allegiance or duty in regard to Article 104 is simply non-existent and not based on anything but the historic treason law that was deliberately kept separate on parallel tracks via Congressional action. Therefore, UCMJ 104 as applied to military commissions is more than a mere loophole, but rather was created and maintained as a choice for military prosecutors to consider.

(1) See generally Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Rasul v. Bush, 542 U.S. 466 (2004).

(2) Military Commissions Act of 2006, 10 U.S.C. [section] 948 (2006) [hereinafter MCA 2006]; see also U.S. DEP'T OF DEF., MANUAL FOR MILITARY COMMISSIONS (2006) [hereinafter MMC 2006].

(3) Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

(4) Military Commissions Act of 2009, 10 U.S.C. [section] 948 (2009) [hereinafter MCA 2009]; See also U.S. DEP'T OF DEF., MANUAL FOR MILITARY COMMISSIONS (2010) [hereinafter MMC 2010].

(5) See Warren Richey, Obama Endorses Military Commissions for Guantanamo Detainees, CHRISTIAN SCI. MONITOR, Oct. 29, 2009, http://www.csmonitor.com/USA/ Justice/2009/1029/p02s01-nsju.html (reporting that critics admit that "the new law addresses some of the defects of the military commissions").

(6) See generally David Frakt, New Manual for Military Commissions Disregards the Commander- in-Chief Congressional Intent and the Laws of War, HUFFINGTON POST (Apr. 29, 2010), http://www.huffingtonpost.com/david-frakt/ new-manual-for-military-c_b_557720.html. Lieutenant Colonel Frakt (USAFR) is a former lead defense counsel in the military commissions system. He writes,
   On the whole, the 2009 MCA is substantially fairer than the 2006
   version of the law and the new Manual also contains some
   significant improvement over the previous version. The standards
   for admissibility of coerced statements and hearsay evidence, for
   example, now are much closer to the standards which apply in
   general courts-martial and federal court. There is, however, some
   very troubling language in the new Manual relating to the proof
   required to convict for certain offenses, which undermines the
   Obama Administration's claims of respect for the law of war and
   adherence to the rule of law.


(7) MANUAL FOR MILITARY COMMISSIONS, UNITED STATES, R.M.C. 103(30), pt. IV (2010); see also 10 U.S.C. [section] 948(a)(7) (2009). The manual defines an "unprivileged enemy belligerent" as someone who is not a privileged belligerent and who "(A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense...." RMC 103(30).

(8) Id. at forward ("Pursuant to 10 U.S.C. [section] 949a, the M.M.C. is adapted from the Manual for Courts-Martial.").

(9) United States v. Hamdan, No. 09-002 at 52 (C.M.C.R. Jun. 24, 2011) (en banc) (noting that when "the absence of a breach of duty or allegiance is not in the elements and form specifications, the members are not required to assess this element before making their findings, and they are flee to find enemy aliens with no such duty guilty of aiding the enemy"), available at http://jnslp.wordpress.com/2011/06/24/nationalsecuritylaw -us-v-hamdan-cmcr-june-24-2011-affirming-conviction-and- sentence/; see also id. at 56 & n. 130 (recognizing that the appellant had no duty to the United States and that providing "material support for terrorism ... does not have such an element.").

(10) The charge has consistently stated the following:
   Any person who 1) aids, or attempts to aid, the enemy with arms,
   ammunition, supplies, money, or other things; or 2) without proper
   authority, knowingly harbors or protects or gives intelligence to
   or communicates or corresponds with or holds any intercourse with
   the enemy, either directly or indirectly; shall suffer death or
   such other punishment as a court-martial or military commission may
   direct.


(11) UCMJ art. 104 (2008); art. 106, "Spies," ("Any person who in time of war is found lurking as a spy or acting as a spy ... shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death."); see also Major E. John Gregory, Trying Unlawful Combatants at General Courts-Martial: Amending the UCMJ in Light of the Military Commissions Experience, 203 MIL. L. REV. 150, 166 n. 70 (2010) (labeling Article 104 as a "possible exception" to the norm that could potentially be used punitively via courts-martial against enemy combatants).

(12) The other exceptions are Article 83, Fraudulent enlistment, appointment or separation, and Article 113, Misbehavior of a sentinel or lookout. The UCMJ, Article 2, defines "subject to this chapter" as essentially those with some military connection, including "persons serving with or accompanying an armed force in the field" during wartime.

(13) See, e.g., Article 85, Desertion, and 86, Absence without leave. UCMJ art. 85, art. 86.

(14) See, e.g., articles dealing with commissioned or non-commissioned officers, such as Article 133, Conduct unbecoming an officer and gentleman, and Article 91, Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer. UCMJ art. 133, art. 91.

(15) 10 U.S.C. [section] 904 relates to Article 104 of the Manual for Courts-Martial (MCM). This article specifically applies to both courts-martial and military commissions. The MMC also includes a comparable charge, although the MMC version requires the accused to have had an allegiance or duty to the United States at the time of the alleged offense. See also Gregory, supra note 11, at 166 n, 70.

(16) 10 U.S.C. [section] 104 (2006) (as amended by Pub.L. No. 109-366, [section] 4(a)(2), which inserted that sentence at the end of 10 U.S.C. [section] 104(a)(2)).

(17) See MCA 2009, supra note 4.

(18) Id.

(19) UCMJ art. 104 (2008).

(20) See MCA 2009, supra note 4.

(21) MMC 2010, supra note 4; see also MMC 2006, supra note 2. Both the 2006 and 2010 manuals describe Wrongfully Aiding the Enemy in part as "Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct."

(22) MMC 2010, supra note 4, at Part IV, para. (26)(c)(3):
   The requirement that conduct be wrongful for this crime
   necessitates that the accused owe allegiance or some duty to the
   United States of America. For example, citizenship, resident alien
   status, or a contractual relationship in or with the United States
   is sufficient to satisfy this requirement so long as the
   relationship existed at a time relevant to the offense alleged.


(23) See generally David Glazier, A Self-Inflicted Wound: A Half-dozen Years of Turmoil over the Guantanamo Military Commissions, 12 LEWIS & CLARK L. REV. 131 (2008). In his critique of the military commissions system, Glazier argues that in order to commit the crime of aiding the enemy, one must "logically be a citizen or resident of the U.S., or a resident of territory occupied by U.S. military forces who owes a temporary duty of allegiance to the occupier in exchange for its protection." Id. at 154.

(24) See UCMJ art. 21(2008) (explaining the Congressional notice of the law of war: "The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.").

(25) UCMJ art. 104c(1) (2008) (explaining the scope of Article 104) (emphasis added).

(26) UCMJ art. 99 c(1)(b) (2008). This definition of "enemy" is found in Article 99, "Misbehavior before the enemy," which explicitly limits its application to members of the armed forces. Id. at 99a.

(27) For an analysis on the hostilities and the subsequent presidential authorizations, see generally Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
   On September 11, 2001, the al Qaeda terrorist network used hijacked
   commercial airliners to attack prominent targets in the United
   States.... One week later, in response to these "acts of
   treacherous violence," Congress passed a resolution authorizing the
   President to "use all necessary and appropriate force against those
   nations, organizations or persons, in order to prevent any future
   acts of international terrorism against the United States." ...
   Soon thereafter, the President ordered United States forces to
   Afghanistan, with a mission to subdue al Qaeda and quell the
   Taliban regime that was known to support it. (internal citations
   omitted)


Id.

(28) See Glazier, supra note 23, at 154 (attaching an allegiance requirement to UCMJ Article 104); see also Defense Motion to Dismiss Charge 3 for Failure to State an Offense, United States v. Hicks, No. 09-002 (C.M.C.R. Oct. 4, 2004 (arguing that the Australian citizen should not be charged with aiding the enemy because he owed no allegiance or duty to the United States); see also Prosecution Response to Defense Motion to Dismiss Charge 3, Hicks, (C.M.C.R. Oct. 18, 2004) (arguing that allegiance is not an element to aiding the enemy), available at http://www.defense.gov/news/Oct2004/ d20041022dismiss.pdf.

(29) Hicks v. Bush, 2007 WL 902303, at *1 (D.D.C. 2007); Hamdan, 548 U.S. 557.

(30) Vijay M. Padmanabhan, Norm Internalization Through Trials for Violations of International Law: Four Conditions for Success and Their Application to Trials of Detainees at Guantanamo Bay, 31 U. PA. J. INT'L L. 427, 466 n. 153 (2009).
   The ten detainees charged were Ali Hamza al-Bahlul (Yemen); Ibrahim
   al-Qosi (Sudan); David Hicks (Australia); Salim Ahmed Hamdan
   (Yemen); Omar Khadr (Canada); Ghassan al-Sharbi (Saudi Arabia);
   Jabran Qahtani (Saudi Arabia); Sufyian Barhoumi (Algeria); Binyam
   Muhammad (Ethiopia); and Abdul Zahir (Afghanistan), most of whom
   were charged only with conspiracy based on their involvement with
   al Qaeda and the Taliban. David Hicks and Omar Khadr were also
   charged with murder and aiding the enemy based on their involvement
   in firefights between the Taliban and the U.S. military in the
   course of the war in Afghanistan.


Id.

(31) Infra note 34.

(32) Glazier, supra note 23, at 154 (arguing that "commentators implicitly recognize that an individual must have a duty not to aid the enemy in order to be prosecuted, noting that this offense is closely related to treason."). Among other sources, Glazier cites Winthrop's classic 1920 treatise on military justice: WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 831 (1920). See also generally Captain Jabez W. Loane IV, Treason and Aiding the Enemy, 30 MIL. L. REV. 43, (1965) (offering an extensive history of the parallel tracks between treason and aiding the enemy). Loane states that, historically as early as 1691, English jurisprudence viewed aiding the enemy as a "separate offense" and consequently different from treason. Id. at 59. Loane, however, does not address applying Article 104 to a non-citizen, although he also recognizes that Article 104 has a "close relationship" to treason and that a treason charge can be levied against resident aliens. Id. at 78, 69. A resident alien, although not a citizen, could be considered to have some sort of allegiance to the United States. See Glazier, supra note 23, at 154; see also infra text accompanying notes 83-93; Convictions under Article 104 have typically been applied to U.S. Prisoners of War who accepted some sort of parole from the enemy during the servicemember's detention; See, e.g., United States v. Olson, 1957 WL 4621 (C.M.A.); United States v. Batchelor, 1956 WL 4750 (C.M.A.).

(33) Hamdan, CMCR 09-002 at 56, citing G.O. 93, pp. 8-9 (1864) (T. Sanders); G.O. 93, pp. 10-12 (1864) (J. Overstreet); G.O. 93, pp. 3-5 (1864) (F. Norvel); G.O. 112(II), pp. 353-57 1901); (A. Jiloca), n. 144.

(34) Defense Motion to Dismiss Charge 3 for Failure to State an Offense, United States v. Hicks, No. 09-002, at n. 1 (C.M.C.R. Oct. 4, 2004) ("The American offense of 'aiding the enemy' has its origins in Articles 27 and 28 of the Articles of War of 1775, predating the American crime of treason...."), available at http://www.defense.gov/news/ Oct2005/d20051006vol9.pdf.

(35) See Padmanabhan, supra note 30, at 483 n. 235 (noting that in most military commission cases, "the only charges that proceeded to trial were for relatively minor offenses of material support for terrorism and conspiracy.").

(36) Hamdan v. Rumsfeld, 548 U.S. 557,600 n. 32 (2006).

(37) Id. (referring to the Hicks case).

(38) Id. Justice Thomas, in a dissent joined by Justice Scalia and in part by Justice Alito, argues that Hamdan was in fact triable before a military commission for aiding the enemy by supplying "weapons, transportation and other services." Id. at 696-97 (Thomas, J., dissenting). Citing Winthrop, Thomas states, "the conclusion that such conduct violates the law of war led to the enactment of Article 104 of the UCMJ." Id. at 697.

(39) UCMJ art. 104 (2008).

(40) MMC 2010, supra note 4, at Part IV, para. (26)(c)(3).

(41) See generally Tara Lee, American Courts-Martial for Enemy War Crimes, 33 U. BALT. L. REV. 49 (2003). Lee notes:
   Congress authorized specific military jurisdiction over certain
   crimes unique to time of war--such as aiding the enemy and
   spying--as early as 1775. The original statutory Code of Articles
   of War, enacted in that year, provided at Article 27 that
   "[w]hosoever relieves the enemy with money, victuals, or
   ammunition, or knowingly harbors or protects an enemy...." and at
   Article 28 that "[w]hosoever holds correspondence with, or gives
   intelligence to, the enemy, either directly or indirectly...."
   shall each "suffer death, or such other punishment as a
   court-martial may direct."


Id. at53.

(42) Defense Motion to Dismiss Charge 3 for Failure to State an Offense, United States v. Hicks, No. 09-002, (C.M.C.R. Oct. 4, 2004), available at http://www.defense.gov/news/Oct2005/d20051006vol9.pdf.

(43) 1 Stat. 1121; see also U.S. CONST. art III,[section] 3 (defining treason as levying war, adhering to the enemy or giving aid and comfort to the enemy).

(44) See Charles Warren, What is Giving aid and Comfort to the Enemy, 27 YALE L.J. 331, 332 (1918)(arguing that the early development of the law hints at the historic split between aiding the enemy and treason as those with an allegiance are guilty of treason, while others without a duty conceivably are merely aiding the enemy).

(45) Id.

(46) Id.

(47) Id.

(48) See United States v. Olson, 22 C.M.R. 250, 257 (1950) (discussing the difference between "the kind of act which 'aids' the enemy in treason law ... and relieving or aiding the enemy in military law").

(49) First Superseding Indictment at 3-8, United States v. Adam Gadahn, No. SA CR 05-254(A) (C.D.Cal. Oct. 11, 2006), available at http://www.usdoj.gov/opa/ documents/adam_indictment.pdf. Gadahn is alleged to have served as al Qaeda's English-language spokesman for most of the post-9/11 decade. He allegedly issued numerous videotaped statements spreading the al Qaeda message and touting other provocative missives directed toward American citizens and others. Id. The grandson of a Jewish doctor, Gadahn converted to Islam in 1995. Greg Krikorian & H.G. Reza, O.C. Man Rises in Al Qaeda: "Azzam the American," or Adam Gadahn, has moved from translator to propagandist," L.A. TIMES, Oct. 8, 2006, available at 2006 WLNR 17422182. According to the National Counterterrorism Center, as of June 2011, he was still a fugitive. http://www.nctc.gov/site/profiles/gadahn.html (last visited Jun. 17, 2011).

(50) World War II treason cases include D'Aquino v. United States, 192 F.2d 338 (9th Cir. 1951); Best v. United States, 184 F.2d 131 (lst Cir. 1950); Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950); United States v. Burgman, 87 F.Supp. 568 (D.D.C. 1949); and Chandler v. United States, 171 F.2d 921 (lst Cir. 1948).

(51) See Kristen Eichensehr, Treason's Return, 116 YALE L.J. POCKET PART 229, 230 (2007) ("The World War II propagandist cases involving treason mention 'levying war' only in passing, and instead rest their decisions ... on the 'aid and comfort' prong.).

(52) Prosecution Response to Defense Motion to Dismiss Charge 3, United States v. Hicks, (C.M.C.R. Oct 18, 2004), available at http://www.defense.gov/news/Oct2004/ d20041022dismiss.pdf.

(53) Ex Parte Quirin, 317 U.S. 1 (1942) (case relating to Nazi saboteurs who were captured and tried via military commission after sneaking into the United States.); see also In re Territo, 156 F.2d 142(9th Cir. 1946) (prisoner of war case involving a U.S. national who moved to Italy and ultimately served enemy forces). The court in Territo stated,
   A neutral, or a citizen of the United States, domiciled in the
   enemy country, not only in respect to his property, but also as to
   his capacity to sue, is deemed as much an alien enemy as a person
   actually born under the allegiance and residing within the
   dominions of the hostile nation. Id. at 145 (internal citations
   omitted) (emphasis added).


(54) Quirin, 317 U.S. 1.

(55) Id.

(56) Id. (explaining that Article 81 defines "the offense of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy"). However, David Hicks' defense team argued that the Quirin defendants had a duty of allegiance to the United States because the saboteurs had entered U.S. territory. Defense Motion to Dismiss Charge 3 for Failure to State an Offense, United States v. Hicks, No. 09-002 (C.M.C.R. Oct. 4, 2004), available at http://www.defense.gov/news/Oct2005/d20051006vol9.pdf. In its response, the Government argued that
   it can hardly be gleaned from (the trial transcripts) that
   "allegiance to the United States" was either alleged or a "central
   element" as claimed by the Defense. In fact, Quirin makes clear
   that an unlawful enemy combatant, neither a citizen nor owing any
   duty of allegiance to the United States, can be guilty of the
   offense of Aiding the Enemy.


Prosecution Response to Defense Motion to Dismiss Charge 3, Hicks, No. 09-002.

(57) Defense Motion to Dismiss Charge 3 for Failure to State an Offense, Hicks, No. 09-002, at 2.

(58) See generally United States v. Batchelor, 22 C.M.R. 144 (C.M.A. 1956) (upholding conviction of Korea POW for violating Article 104 by "communication with the enemy without proper authority"); United States v. Garwood, 20 M.J. 148 (C.M.A. 1985) (affirming conviction of former Vietnam POW who voluntarily did not return to the U.S. until 1979); also see Paul T. Crane, Did the Court Kill the Treason Charge?: Reassessing Cramer v. United States and its Significance, 36 FLA. ST. U. L. REV. 635, 690 (2009)(noting the "numerous cases in which courts approved prosecutions of soldiers that relied on the existence of an enemy even though there was no formal declaration of war" in Korea).

(59) Glazier, supra note 23, at 154.

(60) See, e.g., Glazier, supra note 23, at 136-147 (discussing the history of military commissions from the Mexican-American War to World War II); Crane, supra note 58, at 639 ("[U]nlike previous conflicts, the Korean War, Vietnam War, Persian Gulf Conflict, and the Iraq War all failed to yield a treason prosecution.").

(61) Sean Riordan, Military Commissions in America? Domestic Liberty Implications of the Military Commissions Act of 2006, 23 TOURO L. REV. 575, 599 n. 83 (2007) (internal citations omitted).

(62) David Glazier, Ignorance is Not Bliss: The Law of Belligerent Occupation and the U.S. Invasion of Iraq, 58 RUTGERS L. REV. 121, 151 (2005)(quoting Henry W. Halleck's 1861 international law treatise). Halleck, an attorney, was also a West Point graduate who later became "General-in-Chief of all the land forces of the United States" in 1862, stated that "the duty of allegiance is reciprocal to the duty of protection." Id. at 149, 151.

(63) See id. at 151, which summarizes Halleck's views as follows:
   [O]ccupation essentially created a contract between citizen and
   occupier. The citizen was required to cease resistance and give
   obedience to the occupier; in exchange the occupier gave up its
   belligerent rights to kill and destroy and assumed responsibility
   for the protection of the population.... Forceful
   resistance to the occupation was permissible only by those who had
   remained lawfully in arms and had never submitted to the authority
   of the occupier, or if the occupier failed to live up to its legal
   obligations to the point that its conduct became "so injurious to
   the conquered people as to render submission intolerable."


(64) Id.

(65) See, e.g., Boumediene v. Bush, 579 F.Supp. 2d 191, 193 & 195 (D.D.C. 2008) (reporting the court's opinion about the proceedings involving native Algerians captured in Bosnia and sent to Guantanamo: "To say the least, this is an unusual case" with a "unique nature ... and logistical and legal questions"....), rev'd & remanded, Bensayah v. Obama, 610 F.3d 718, (D.C.Cir. 2010); Martin A. Hewett, Hearsay at Guantanamo: A Fundamental Value of Determination, 96 GEO. L.J. 1375, 1409 (2008) ("The challenges posed by the War on Terrorism to traditional definitions of war and crime certainly require new legal approaches to detention and punishment.")

(66) See supra Part II.

(67) United States v. Hamdan, No. 09-002 at n. 130 (C.M.C.R. Jun. 24, 2011) (en banc), available at http://jnslp.wordpress.com/2011/06/24/ nationalsecuritylaw-us-v-hamdan-cmcrjune-24-2011-affirming- conviction-and-sentence/.

(68) Id.

(69) See supra text accompanying notes 28-39.

(70) MMC 2010, supra note 4 (foreword on unnumbered page).

(71) Id.

(72) UCMJ art. 104 (2008); MMC 2010, supra note 4, art. 26.

(73) A Westlaw search of both reported and unreported military justice cases containing the term "Article 104" produced 27 cases, of which only 10 actually involved charges of violating Article 104 (although several dealt with related offenses, such as violating Article 134 by attempting to communicate and offering to sell defense information to a foreign nation. U.S. v. French, 1958 WL 3270 (A.F.C.M.R. 1958)). Search conducted 27 June 2011 (results on file with the author). None of the courts imposed capital punishment, although an Army National Guard member received a life sentence for Article 104 and related offenses. United States v. Anderson, 69 M.J. 378 (C.A.A.F. 2010) (upholding conviction and life imprisonment for Army specialist who violated Articles 80, 104 and 134).

(74) See Ellen Nakashima, Alleged Leaker Manning Faces 22 New Charges, WASH. POST, March 3, 2001 at A2 (reporting that prosecutors did not intend to seek the death penalty for the Army private accused of leaking classified information to Wikileaks); see also Anderson, 69 M.J.; U.S. v. Olson, 1957 WL 4621 (C.M.A. 1957) (affirming a sentence of two years confinement and a dishonorable discharge for three Article 104 offenses).

(75) MCA 2009, supra note 4. Section [section] 948a defines an "unprivileged enemy belligerent" as someone "other than a privileged belligerent who (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense.... " See also MMC 2010, supra note 4, at Rule 202, which reads as follows:

"(a) In general. Any alien unprivileged enemy belligerent is subject to trial by military commission under chapter 47A of title 10, United States Code.

(b) Privileged belligerents. Military commissions under chapter 47A of title 10, United States Code, shall not have jurisdiction over privileged belligerents."

(76) See Glazier, supra note 23, at 154. (Citing Winthrop, Glazier contends that Article 104 could never apply to military commissions because of what he views as a duty of allegiance requirement).

(77) MMC 2010, supra note 4, at 26(c)(3).

(78) See Green Card (Permanent Residence), U.S. CUST. & IMMIG. SERV., http://www.uscis.gov/greencard (last visited Jun. 29, 2011); 8 U.S.C.A. [section] 1101(a)(20) 42010) (defining "lawfully admired for permanent residence" as an immigration status, rather than citizenship); see also Marquez-Almanzar v. INS, 418 F.3d 210 (2nd Cir. 2005)(holding that a Dominican Republic native born outside the United States to non-citizen parents did not qualify as a U.S. national despite serving in the U.S. Army for eight years, sweating allegiance to the U.S. Constitution, and immersing himself in U.S. society).

(79) MMC 2010, supra note 4, at 26(c)(3).

(80) Khalid Sheikh Muhamrnad received a college degree from North Carolina A&T State University in the 1980s before returning to the Middle East. Muhammad also experienced a brief period in a local North Carolina jail after a car accident in which he was driving with an expired license. Dina Temple-Raston, Morning Edition: Khalid Sheikh Mohammed's Isolated US. College Days (NPR radio broadcast Nov. 18, 2009), available at http://www.npr.org/templates/story/story.php?storyId=12051615.

(81) MMC 2010, supra note 4, at Part IV, para. 26(c)(3).

(82) While it is, of course, difficult to prove a negative, a search of military justice case law shows that military courts distinguish membership in the armed forces (the basis for courtmartial jurisdiction in most situations) from a contractual relationship. See, e.g., United States v. New, 55 M.J. 95, 107 (C.A.A.F. 2001) ("[M]ilitary service is a matter of status, like becoming a parent, rather than just a contractual relationship, and that status establishes special duties between the soldier and the Government.") (internal citations omitted). The Supreme Court has drawn a similar distinction between civil and criminal jurisdiction for special tribunals, granting Indian tribes "broader ... tribal powers outside the criminal context." Duro v. Reina, 495 U.S. 676, 687 (1990). The Court said, "As distinct from criminal prosecution, this civil authority typically involves situations arising from property ownership within the reservation or 'consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.'" Id. at 688 (internal citations omitted) (emphasis added). However, the Court refused to allow such "consensual relationships" to justify criminal prosecution of non-tribal members, even for an offense committed on the tribe's reservation against a tribal: "The exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but also to the prosecuting power of the tribe, and involves a far more direct intrusion on personal liberties." Id. The Court later upheld a "congressional statute 'recogniz[ing] and affirm[ing] the 'inherent' authority of a tribe to bring a criminal misdemeanor prosecution against an Indian who is not a member of that tribe--authority that this Court previously held a tribe did not possess." United States v. Lara, 541 U.S. 193, 196 (2004) (comparing 25 U.S.C. [section] 1301(2) with Duro). The Court based its decision, however, on a finding that "Congress has the constitutional power to relax restrictions that the political branches have, over time, placed on the exercise of a tribe's inherent legal authority," rather than on any contractual relationship. Id.

(83) See generally Fritz Schulz, Jr., Co. v. Raimes & Co., 166 N.Y.S. 567, 568 (1917) (dealing with "the interesting question of war-time access to U.S. courts by a "corporation organized under the laws of one of the states of this country, but owned principally by alien enemies."). The court ruled:
   So long as a corporation created by any American state still has
   legal existence, and officers or agents, with authority to do
   business or bring actions, it cannot be deprived of access to the
   courts for the protection of its legal rights, though nearly all of
   its stockholders are alien enemies living in Germany, especially
   where a majority of its directors, including its managing director,
   are residents of the United States, and the corporation is
   therefore under the control of residents.


Id.

(84) Uebersee Finanz-Korporation, A.G. v. McGrath, 343 U.S. 205, 211 (1952) (holding that the U.S. Government properly seized securities purportedly owned by a Swiss corporation under the Trading with the Enemy Act of 1917, as amended in 1941, when the evidence established that the corporation's "enemy taint was all but complete because of the predominant influence and control" of a German national.).

(85) See Kaufman v. Societe Internationale Pour Participations Industrielles et Commerciales, S.A., 343 U.S. 156, 159 (1952). The Court, however, also ruled that the "rights of innocent stockholders to an interest in the assets proportionate to their stock holdings must be fully protected." Id. at 160.

(86) See, e.g., AMERICAN STATE PAPERS: MILITARY AFFAIRS 1:721-35 (reporting the 1818 military trial and execution of two British citizens charged with, among other things, aiding and abetting the enemy (in this case Native American tribes during the Seminole War)); LouIs FISHER, CONG. RESEARCH SERV., RL 32458, MILITARY TRIBUNALS: HISTORICAL PATTERNS AND LESSONS 8-11 (2004) (discussing the controversy over the trials); See also United States v. Hamdan, No. 09-002 at 52-53 (C.M.C.R. Jun. 24, 2011) (en banc) (In citing these controversial cases, the en banc panel stated that it "takes no comfort in the historical context in which these events occurred or the ultimate disposition of these cases. We cite to these events for their historical occurrence as an embryonic effort of the United States to deal with the complexity of fighters in irregular warfare.").

(87) MMC 2010, supra note 4, at Part IV., para. 26(c)(3): (describing "resident alien status" as satisfying the allegiance or duty requirement "so long as the relationship existed at a time relevant to the offense alleged.").

(88) See Al-Marri v. Pucciarelli, 534 F. 3d 213, 219 (4th Cir. 2008); see also Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005); Boumediene v. Bush, 553 U.S. 723, 797-98 (2008); United States v. Verdugo-Urquidez, 494 U.S. 259 (1990); but see Boumediene 553 U.S. at 848-49 (Scalia, J., dissenting) (explaining that constitutional rights are derived "from the consent of the governed, ... in which citizens (not 'subjects') are afforded defined protections against the Government").

(89) See Ex Parte Quirin, 317 U.S. 1, 16 (1942) (holding that the offenses (which were charged under the UCMJ's predecessor) were complete when the petitioners surreptitiously "entered--or having so entered, they remain upon--our territory in times of war without uniform or other appropriate means of identification").

(90) See Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 201-202 (D.C. Cir. 2001) (reviewing the long line of cases holding that "aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country") (internal citations omitted); Al-Aqeel v. Paulson, 568 F.Supp. 2d 64 (D.C. 2008).

(91) Al-Aqeel, 568 F. Supp. 2d, at 70.

(92) Id.

(93) Glazier, supra note 23, at 154.

(94) Id.

(95) Prosecution Response to Defense Motion to Dismiss Charge 3, United States v. Hicks, at 2 (C.M.C.R. Oct. 18, 2004) available at http://www.defense.gov/news/ Oct2004/d20041022dismiss.pdf.; also see Australia-United States Mutual Defense Treaty, September 1, 1951.

(96) See generally Pakistan a Vital Ally in anti-Terror War: Rice, DAWN, March 17, 2005, available at http://www.dawn.com/2005/03/18/top5.htm.

(97) United States v. Hamdan, No. 09-002 at 56 (C.M.C.R. Jun. 24, 2011) (en banc), available at http://jnslp.wordpress.com/2011/06/24/nationalsecuritylaw-us -v-hamdan_cmcr_june_24_2011-affirming-conviction-and- sentence/.

(98) MMC 2010, supra note 4, at Part IV, para. 5(25):
   Any person subject to this chapter who provides material support or
   resources, knowing or intending that they are to be used in
   preparation for, or in carrying out, an act of terrorism ..., or
   who intentionally provides material support or resources to an
   international terrorist organization engaged in hostilities against
   the United States, knowing that such a organization has engaged or
   engages in terrorism ..., shall be punished as a military
   commission under this chapter may direct.


(99) Id.; UCMJ art. 104.a (2008):

Any person who--

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.

(100) MMC Part IV, para. 5(26), is titled Wrongfully Aiding the Enemy; UCMJ art. 104 is titled Aiding the enemy; MMC Part IV, para. 5(25), is titled Providing Material Support for Terrorism.

(101) In contrast to MMC Part IV, para. 5(25), neither MMC Part IV, para. 5(26), nor UCMJ art. 104 mentions the term "terrorism." They instead refer only to "the enemy."

(102) MMC 2010, supra note 4, at Part IV, para. 5(25).

(103) See supra text accompanying notes 23-28 for a discussion of "the enemy."

(104) See, e.g., United States v. Hamdan, supra note 9 (recognizing that aiding the enemy in general, as well as material support charges can apply to anyone engaged in hostilities, regardless of duty.)

(105) See discussion supra Part II.

(106) See Peter Finn, Administration Halts Prosecution of Alleged USS Cole Bomber, WASH. POST, Aug. 26, 2010 http://www.washingtonpost.com/wp-dyn/content/ article/2010/08/26/AR2010082606353.html (reporting that an anonymous military official blamed politics for delaying a military commission where prosecutors claimed they were ready to charge the case.); MANUAL FOR COURTS-MARTIAL, UNITED STATES [HEREINAFTER MCM], R.C.M. 104 (2008) (prohibiting unlawful command influence); Captain Teresa K. Hollingsworth, Unlawful Command Influence, 39 A.F.L. REV. 261, 274-75 (1996) (contrasting the legal effect of comments made by an Army general officer and the Air Force chief of staff); Lieutenant Col Patricia A. Ham, Still Waters Run Deep? The Year in Unlawful Command Influence ARMY LAW, June 2006, at 53, 67-68 (discussing senior officers' appropriate remarks about high-profile military justice incidents).

(107) See, e.g. Michael J. Lebowitz, The Value of Claiming Torture: An Analysis of al Qaeda's Tactical Lawfare Strategy and Efforts to Fight Back, 43 CASE W. RES. J. INT'L L. 357, 376 (2010)(military commissions in part protect national security assets by permitting unwarned statements into evidence, so long as the statements are untainted).

(108) MMC 2010, supra note 4, at rule 504 (defining the convening authority as the Secretary of Defense or, unless limited by superior competent authority, any officer or official of the United States designated by the Secretary of Defense.).

(109) Id. at rule 504(a) (authorizing the convening authority to create a military commission.)

(110) UCMJ art. 22(a)(6) (2008) (authorizing "the commander in chief of a fleet; the commanding officer of a naval station or larger shore activity of the Navy beyond the United States" to convene a general court-martial); see also JOINT TASK FORCE GUANTANAMO, http://www.jtfgtmo.southcom.mil/(stating that the a Navy rear admiral commands the task force) (last visited Jul. 1, 2011).

(111) See MCM, supra note 106, R.C.M. 104, 406, 407 (discussing the factors the convening authority should consider when disposing of a case).

(112) Supra note 10.

(113) Supra note 37.

(114) Loane at 43.

(115) 18 U.S.C. 2381 (Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.).

MICHAEL J. LEBOWITZ *

* Michael J. Lebowitz (B.A., Kent State University; J.D., Case Western Reserve University School of Law) is a prosecutor in the Office of Military Commissions. He previously served as chief legal assistance attorney and military defense counsel in the Virginia Army National Guard as part of the U.S. Army Judge Advocate General's Corps. In addition, he deployed to Iraq in 2005-2006 as a paratrooper with the Pathfinder Company of the 101st Airborne Division. Mr. Lebowitz has also served as a litigation attorney and military defense counsel in private practice. The author would like to thank Chuck Zelnis [USMC (Ret.)], a prosecutor with the Office of Military Commissions, for his guidance and insight in preparing this paper.
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Author:Lebowitz, Michael J.
Publication:Air Force Law Review
Date:Mar 22, 2011
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