Volume IV Issue II

WASHINGTON UNDERGRADUATE

LAW REVIEW

VOLUME IV ISSUE IIWINTER 2011

Kendra Albert

ARTIcLES

Daubert: Implementation, Implications, and Solutions

A Review of Military Commissions and the War on Terror Genevieve Hoffman

Determining the Legality of Enforcing Immigration Laws Brian Jordan

Understanding the Strong Basis in Evidence Standard in Ricci v. DeStefano Corey Singer

Alicia ArnoldSara Alavi

Lisa CastilloTiffany Chu

Marie Curatolo Bernard Ellouk

Rachel GreenleeAshley Lindsey

Amanda LuiDaniel RiojasJuliya Ziskina

Ashley BurmanKathlyn EhlScott Hardy

Mercedes LunaTakayuki Matsushita

Sarah McCallKayhan Nejad

Abbie PettyMichael Rebagliati Michelle RichardMelanie Robinson

Chanvir SinghBrittany Williams

Masthead

Senior Editors

Associate Editors

Editor-in-ChiefTeresa A. Teng

Executive EditorsBrooke E. HowlettEmma L. Mayberry

Emilee A. SahliVanessa M. Stone

Daubert: Implementation, Implications, and Solutions

By Kendra Albert*

* Kendra Albert is a history and drama major at Carnegie Mellon University in Pittsburgh. Her areas of interest include causation theory, industrial history, epidemiology in the courtroom, and philosophy of science. She began this paper as part of a class on Law, Causation and Social Policy with Professor Richard Scheines, who is now serving as her thesis advisor. Next year, she plans to pursue a Master of Philosophy in History, Philosophy and Sociology of Science, Technology and Medicine at Cambridge University in the United Kingdom.

Volume IV Winter 2011 Issue II

ARTICLES

William Daubert v. Merrell Dow Pharmaceuticals (1993) and the other cases in the Daubert trilogy, General Electric Co. v. Joiner (1997) and Kumho Tire Co. v. Carmichael (1999) changed the standard for expert testimony in American courtrooms. These three cases served to replace the 1923 Frye standard on the federal level, and had vast, far-reaching consequences for the role of the judge.Despite initial uncertainty as to the consequences of the trilogy, it is clear now that Daubert represents a higher standard of evidence than Frye. Some of the rules that have resulted from subsequent case law are not accurate representations of the scientific principles

2 WULR Vol IV, Issue II Winter 2011 3Albert

Table of ContentsIntroductIon...................................................................................2I:HIstory.................................................................................3II: ImplementatIon.............................................................................7III: problems.....................................................................................8IV: proposed solutIons...................................................................12conclusIon...................................................................................14

underlying evidence. Seventeen years later, the Daubert standard has created an unexpected burden on plaintiffs and has not necessarily led to better law. This paper discusses the initial interpretation, the subsequent academic reaction, research into changes post-Daubert, and finally solutions to the problem of general causation requirements.

Absence of evidence is not evidence of absence.- Carl Sagan

IntroductIon

Since the introduction of scientific evidence into courtrooms, questions have arisen about how to best evaluate evidence and the experts that present it. With the human inclination to believe experts, despite their necessary place in an adversarial system, both judges and juries often need methods that help them determine the reliability of the claims placed in front of them. The 1923 Frye test which as of 2004 is still used in twenty-five states was the federal standard until the adoption of the Daubert doctrine in 1993.1 Since Daubert has become the federal trial standard, a number of studies have been done which attempt to come to a conclusion about what Daubert has done to the judicial system, and whether

1 Thomas OConnor, ADMISSIBILITY OF SCIENTIFIC EVIDENCE UNDER DAUBERT, (2010) http://www.drtomoconnor.com/3210/3210lect01a.htm (last visited Jan. 29, 2011).

the changes that it has caused are problems that need to be solved. By now, it is clear that Daubert and its companion cases Joiner and Kumho, although initially intended to improve evidence gathering and prevent junk science, have caused major changes to both the procedural method of evidence review and the role of a judge. There is also substantial evidence that the Daubert standard places undue burden on the plaintiff in trials, specifically in toxic tort cases, because of the near impossibility of producing enough evidence to prove general causation. A number of experts have suggested different solutions to these issues.

The three major proposed solutions are Margaret Bergers elimination of general causation in favor of a test of moral responsibility, Margaret Berger and Aaron Twerskis informed choice proposal and Catherine Struves hybrid qui tam (compensated whistleblower) system. This paper will outline the Daubert, Joiner and Kumho cases, discuss the initial reaction and intent of the changes to the standard, analyze the current evidence of problems with the Daubert doctrine, and conclude with an examination of a selection of proposed solutions.

part I: HIstory

The primary paradigm for thinking about evidence pre-Daubert was the Frye test. Frye vs. United States was a 1923 federal court case that relied on the admissibility of information from a polygraph test. The Frye test centers on the idea of general acceptance, or whether the claims of an expert are accepted by others in the field and whether the underlying theory of the claims follows the consensus of scientific opinion.2 Frye has numerous problems. First of all, scientific consensus is an ambiguous standard, and although it is usually possible to determine what the current scientific conclusion is, Frye does not seem to recognize the very nature of science as a process designed to eventually result in the truth. If a specific opinion is not the consensus at the time of a lawsuit, this does not prove that it is incorrect or invalid. Additionally, Frye

2 Margaret A. Berger, What Has a Decade of Daubert Wrought?, 95 am. J. pub. HealtH s59, s60 (2005).

4 WULR Vol IV, Issue II Winter 2011 5Albertdoes not include any test of the relevancy of the science presented. As Margaret Berger mentions in her article, What has a Decade of Daubert Wrought?, [Frye] fails to explain how to determine what is the relevant field... it counts the noses of experts rather than looking at the validity of their opinions, and... it leads to self-validating experts who claim that their particular subspecialty is the relevant field.3

The Daubert standard was established in a series of cases that came before the Supreme Court between 1993 and 1999. Two of the three cases (Daubert and Joiner) were toxic tort cases, and the third was a product liability case. Prior to the Supreme Courts acceptance of these cases, there was a call for tort reform from many observers of the legal system. The idea of the expert witnesses of plaintiffs as frauds practicing junk science had taken hold in the minds of the public and many politicians, forcing those involved in the legal system to reexamine how tort litigation was processed.4

The first case of the three, Daubert vs. Merrell Dow Pharmaceuticals, Inc., is actually one in a long line of tort cases brought against Merrell for its drug Bendectin, an anti-morning sickness pill that was suspected to cause birth defects. Bendectin was pulled from the market in 1983 due to the outrage over its potential teratogenic effect or an effect which disturbs normal embryonic development. Commonly called one of the best studied drugs of all time, it was eventually shown that there was no positive correlation with birth defects. Some mothers did give birth to babies with shortened limbs, but later studies showed that it was no higher in mothers taking Bendectin than in the general control population.5 Despite this fact, it was still the subject of controversy in the 1990s due to the number of women who took the drug and the lack of knowledge of the potential risks involved when it was put on the market.6 The Daubert opinion redefined the way evidence was evaluated.

3 Id. 4 Margaret A. Berger, Expert Testimony: The Supreme Court Rules, 16 Issues In scI. & tecH. 57, 57 (2000).

5 Margaret A. Berger & Aaron D. Twerski, Uncertainty and Informed Choice: Unmasking Daubert, 104 mIcH. l. reV. 257, 261 (2005).

6 Id. at 262.

In Daubert, Justice Blackmun determined that the Frye test was not the correct test to apply, since the 1975 Federal Rules of Evidence, enacted by Congress, had replaced common law tests entirely.7 Instead of a test based on general acceptance of the theories and conclusions produced by experts, Daubert concerned itself with methodology and relevance.8 A judge was to serve as the gatekeeper for scientific evidence, applying a flexible standard in order to ensure that juries were not misled by experts. First of all, the judge should decide if the science produced by the plaintiff or defendant was relevant, or whether it would assist the trier of fact to understand or determine a fact in issue.9 Secondly, the judge should examine the testability of the theory proposed; basically, whether it can be falsified. The Supreme Court laid down a number of possible methods of testing, including peer review and publication, error rates and adherence to a scientific standard. 10 However, Justice Blackmun specifically mentions that the Frye test of general acceptance can be used to help weigh the evidence, even though it no longer technically applies as case law. 11

The next case that helped define the Daubert doctrine was General Electric Company vs. Robert K. Joiner. Another toxic tort case, this one focused on the plaintiffs exposure to Polychlorinated biphenyls (PCB) while working at an electrical plant. After developing lung cancer, the plaintiff sued General Electric. The district court that took the case found that the evidence provided was insufficient for proving that PCBs caused lung cancer (the requirement of general causation was not fulfilled).12 General causation is an essential part of toxic tort cases, as in order to prove that PCBs caused lung cancer in the case of Robert K. Joiner, for example, one must first prove that PCBs cause lung cancer in the general population, usually through statistical evidence. After an upper court overturned the ruling, the case was argued before the Supreme Court. Joiner, although cited far less than Daubert, has

7 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 582 (1993).8 Id. at 584.9 Id.10 Id. at 585.11 Id.12 General Elec. Co. v. Joiner, 522 U. S. 136, 137 (1997).

6 WULR Vol IV, Issue II Winter 2011 7Alberthad the largest impact on the way toxic tort and other cases are tried.13

Two important clarifications are present in the Joiner decision. First, Chief Justice William Rehnquist determined that the proper standard for which to appeal a judgment on evidence was abuse of discretion. This means that short of major misconduct in evidence admission by the judge, or a ruling that is manifestly erroneous, parties cannot appeal a determination of evidence.14 The lower court had held judges to a stricter standard, but this Supreme Court ruling eliminated recourse for either plaintiffs or defendants who felt that their evidence had been wrongly excluded. Although not as heavily focused on by scholars, this part of the ruling is perhaps the most important determination for the new standards. Even in cases in which rejection of expert testimony regarding general causation will cause a case to be summarily dismissed, the plaintiff or defendant does not have the right to appeal the decision which rejects the evidence. The ruling also turned to the evidence presented by Joiner in the case. Joiner had compiled an animal study with high dosages of PCBs on infant mice, and a number of epidemiological studies where the results were inconclusive, not statistically significant or the subjects had been exposed to other carcinogens. Joiners representatives argued that although each study was not necessarily entirely conclusive on its own, the combination of these many studies could link PCBs and cancer. The Supreme Court agreed with the District Court, stating that the four epidemiological studies on which [Joiner] relied were not a sufficient basis for the experts opinions.15 The decision also states that the studies, together or separately, did not form enough evidence of general causation.

The final case in the Daubert trilogy was Kumho Tire Company vs. Patrick Carmichael. The case was brought against Kumho Tire because the plaintiff claimed that a wheel on his minivan was defective, and its blowout caused an accident where passengers were killed or seriously injured. The plaintiff brought forward a tire engineer as an expert, who stated that he could tell that the tire had

13 Berger & Twerski, supra note 5, at 263.14 General Elec. Co., 522 U. S. at 139.15 Id. at 141.

not been abused, and therefore, a defect had caused the blowout. The core of the case was to determine which experts fell under the Daubert standard, and the Supreme Court determined that all expert testimony was subject to gatekeeping by the judge. Although the specific Daubert principles may not be applicable in every case brought before a court, judges should concern themselves with the methodology and the rigor of the experts testing methods.16

part II: ImplementatIon

Initial reactions to the Daubert case and its following clarifiers were very mixed. Some experts proclaimed a victory for tort reformers, stating that defendants had the tools to ensure scientific rigor in causation, while some declared it a more liberal standard, asserting that it would help plaintiffs.17 The Court, however, did seem to take the view that the new standard of evidence was more liberal and would result in more evidence admitted.18 Prior to Daubert, there had been much criticism of Frye on a number of similar grounds, from the standard being too conservative not allowing new, yet valid, evidence gathering techniques to too liberal any specialty with a self-vouching community would be allowed to testify.19 However, the implementation of Daubert is far more important than the actual text of the decision.

Despite the initial uncertainty about how Daubert would affect evidence, it has become clear that courts are now more rigorous in their evidence selection. A report entitled Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision by the non-profit think tank, the RAND (Research and Development) Corporation, examined 399 different federal civil cases, concluding that judges were taking their role as gatekeepers seriously by rejecting significantly more evidence. It states, judges addressed the issue of reliability more often and found evidence unreliable more often after the Daubert

16 Kumho Tire Co. v. Carmichael, 526 U. S. 137, 137 (1999). 17 Discussion with Margaret Berger. Telephone interview. 9 Dec. 2009. 18 carl F. cranor, toxIc torts: scIence, law and tHe possIbIlIty oF JustIce 56 (2006). 19 Id. at 49.

8 WULR Vol IV, Issue II Winter 2011 9Albertdecision and up through mid-1997.20 Less predictably and more importantly, the report also found that challenges to the evidence more often resulted in summary judgment (the dismissal of a case before trial). Parties challenging expert evidence more frequently request summary judgment on some or all of the issues in a case, and summary judgment was more frequently granted.21 Thus, more cases were dismissed for lack of reliable or sufficient expert evidence than prior to Daubert. Likewise, judges determined that more cases had their primary merits reliant on expert testimony. The RAND report does not speculate on how well judges are screening the evidence, i.e. whether evidence was rightly or wrongly rejected, but the study provides compelling evidence that Daubert has had a chilling effect on expert testimony in federal civil cases.

part III: problems

Based on the RAND study and specific case examples, many scholars have found fault with the way that Daubert handles evidence. Most of the research in this area is focused on toxic tort cases, as they require proof of general causation, expert witnesses, and are usually federal. However, Margaret Berger, a major expert on evidence law, believes that the problems with Daubert are not confined to toxic torts, and that the issues identified are symptomatic of larger problems.22 She also states that the strict evidence requirements of Daubert have created significant issues in entirely separate fields, as many techniques commonly used in criminal forensic investigation do not necessarily have the type of research that would allow them to pass a Daubert motion.23 Independent of that, Daubert motions have had a large influence outside the courtroom.

One of the major problems identified by Margaret Berger is the disincentive for companies to do research under the Daubert standard. As Carl Cranor discusses in his book Toxic Torts: Science, Law and the Possibility of Justice, there is no toxicology data for the 20 Lloyd Dixon & Brian Gill, Changes in the Standards for Admitting Evidence, (2002) http:/www. rand.org/pubs/research_briefs/RB9037/index1.html (last visited Jan. 29, 2011). 21 Id. 22 Discussion with Margaret Berger, supra note 17. 23 Id.

vast majority of chemical substances on the market.24 Firms who produce chemicals are in the best position, both economically and pragmatically, to do research on their own products. All evidence produced by companies could be later used against them at trial, so there are significant incentives to not fully investigate the toxicity of something put on the market, as that allows plausible deniability later. There are no consequences for failing to do research on a chemical; research is expensive and can later be held against the company. As Berger puts it, referring to diverse cases such as asbestos, tobacco and breast implants, It appears that the corporations took virtually no steps to determine or minimize the possibility of harm until their hands were forced, usually by litigation.25 Although the Daubert standard has not significantly changed the duty of companies to protect consumers from their products, it has increased the likelihood that a toxic tort case brought against a substance will be dismissed through summary judgment, as shown by the RAND study.

Another major problem with Daubert is that judges, although usually highly educated, are not necessarily fully familiar with the scientific processes they are being asked to review. Most toxic tort evidence either takes the form of structure activity analysis, in vitro research, animal testing, or epidemiological studies.26 All of these methods have distinct flaws; however, judges often seem to reject valid scientific inferences based on data because of the perceived issues with different data gathering methods. For example, Carl Cranor cites numerous cases where animal studies are automatically dismissed on the grounds that animals are not humans. In Cranors words, this is an intuitive but mistaken inference substituted for good scientific reasoning about the evidence.27 Often, the logic that judges use in evaluating scientific evidence is not truly representative of the criteria that the studies aim to fulfill.

There are numerous more specific examples of incorrect

24 carl F. cranor, supra note 18, at 12. 25 Margaret Berger, Eliminating General Causation: Notes Towards A New Theory of Justice and Toxic Torts. 97 colum. l. reV. 2117, 2125 (1997). 26 Id, at 2117. 27 Carl Cranor and David A. Eastmond. Scientific Ignorance and Reliable Patterns of Evidence in Toxic Tort Causation: Is There a Need for Liability Reform? 64 law and contemp. probs. 5, 27 (2001).

10 WULR Vol IV, Issue II Winter 2011 11Albertinference by judges about evidence. Many scientists, acknowledging the need for further study and adhering to the general scientific principles under which they operate, hedge language within their work and refuse to state firm conclusions. As a consequence, Communications of scientific results can inadvertently diminish the evidentiary value of reports needed for legal purposes.28 Scientists also are often wary of the generalization of their work, since it may not be applicable to the entire population. Many judges interpret either of these uncertainties as definitive proof that the scientific evidence is not conclusive, which is often false.29 Judges also usually require epidemiological evidence, which most toxicology experts agree is not required for identifying some toxins, such as carcinogens. 30

A number of rules have also sprung up as a result of the Daubert doctrine, including inadmissibility of epidemiological studies with relative risk (risk ratio) under 2.0, the elimination of non-significant studies from conclusions, the inadmissibility of differential diagnosis as a tool for determining cause, and dosage response vs. exposure variability.31 Examining the specifics of these judicial benchmarks and their validity is beyond the scope of this paper. However, experts agree that using a series of specific standards in all cases does not allow for flexibility on a case-by-case basis. There are sound scientific reasons why one should be concerned about admitting a study that is not significant, for example. But these overarching rules do not serve judges well, and do not account for the lack of complete scientific evidence in many toxic tort cases. In the words of Carl Cranor, Excellent evidence makes bad law. The rules judges rely upon ensure that science admitted into the courtroom is all top notch; however, they are patently unrealistic.32

Daubert defenders often postulate that because the Daubert case does not mention any of these specific rules, they cannot

28 carl F. cranor, supra note 18, at 192. 29 Id, at 198. 30 Carl Cranor and David A. Eastmond, supra note 27, at 39. 31 Margaret Berger. Upsetting the Balance between Adverse Interests: The Impact of the Supreme Courts Trilogy on Expert Testimony in Toxic Tort Legislation. 64 law and contemp probs. 289, 326 (2001). 32 Carl Cranor, supra note 18, at 157.

be attributed to Daubert and therefore are not examples of how evidence handling has failed.33 However, case law is not built strictly on what is stated in a decision, and even the staunchest Daubert supporter must admit that these rules, used by judges in the pursuit of reliability of evidence, result from interpretation of the Daubert case. The Supreme Court did not lay down the rule of 2.0 relative risk as a standard, but if the rule is erroneous and is also the popular method by which judges interpret the doctrine, this presents problems for the way toxic tort evidence is processed.

The Erie doctrine has created another major problem for federal courts implementing Daubert. In Erie Railroad Co. v. Tompkins, the Supreme Court ruled that federal diversity cases should take state laws into account if there would be substantive differences in outcome.34 The rule is in effect to prevent forum-shopping, i.e. plaintiffs or defendants moving their case to federal court rooms in order to use laws that better suit them. Many states still follow the Frye evidence system, some use Daubert and some have formed an amalgam of the two. However, since Daubert and its subsequent rules involve a different method of evidence handling and can determine if a plaintiff has enough evidence to go to trial, the principles expressed in Erie apply. Judges should take state laws into account, rather than relying on the federal evidence handling methods in order to prevent defendants from purposely moving cases to federal court in order to get them dismissed.35

The last concern often expressed by Daubert denigrators is that the tort system that has resulted from the Daubert case goes against the fundamental principles that used to embody tort litigation. Fundamental to all tort law is the principle of eggshell skull, referring to the idea that even if a person has a skull as delicate as eggshell, they are still entitled to the protection of the law from actions that might harm them.36 In the urge to close cases fast and ensure that all scientific evidence is perfect, it seems that judges often lose sight of the fact that tort litigation is meant to protect

33 Mueller, Christopher. Reliability Standards-- Too high, too low or just right? seton Hall l.reV. 881, 999 (2003).

34 Margaret Berger, supra note 31, at 309. 35 Id. at 309. 36 Carl Cranor, supra note 18, at 15.

12 WULR Vol IV, Issue II Winter 2011 13Albertconsumers, not to subject them to an unreachable standard of proof. In the eyes of Margaret Berger, the urge to reform the tort system and eliminate frivolous lawsuits has come about things from the wrong end, creating procedural obstacles for plaintiffs instead of actually changing the way the system works.37

part IV: proposed solutIons

There have been three major proposals for dealing with the problems of Daubert. All of them involve fundamental policy changes rather than shifting the way evidence is admitted. This is consistent with the assertion by many scholars that Daubert exacerbated problems already existing within the tort system, and that the only way to fix these issues is to perform underlying reforms.38

Berger and Twerskis informed choice takes some of the burden off of companies by allowing doctors inform patients or workers that a substance might be toxic and is under study. Legal action could be taken if a patient was caused mental anguish by being denied an informed choice or if they were not told of the risks and suffered from one of the supposed effects.39 Therefore, patients would have legal options that would not require Daubert levels of evidence in order to receive compensation for injuries. There are a number of other fields where information regarding risk is required, including product liability and medical malpractice.40 Berger and Twerski most heavily cite the Bendectin cases as an example of how informed choice would work. As Bendectin was an anti-nausea drug, primarily used for improvement of lifestyle and not therapeutic or required by an illness, women would have had a choice whether or not to take it based on a conversation with their doctor about the supposed risks. Risk analysis would come from early studies and Adverse Reaction Reports (reports filed when a drug causes an unexpected negative reaction in a patient). Women who felt the

37 Discussion with Margaret Berger supra note 17. 38 Id. 39 Margaret Berger & Aaron D. Twerski, supra note 5. 40 Id. at 273.

drugs benefits of eliminating nausea outweighed the undetermined risks could take it anyway; women who were worried could opt out.41 This proposal has been severely critiqued, most heavily by David Bernstein, professor of law at George Mason University. He takes issue with their characterization of Bendectin as a lifestyle drug,42 and states that testimony inadmissible under Daubert is not valid for wider settings.43 He also claims that the Berger-Twerski proposal asks too much of juries in determining risk44 and would lead to an overabundance of warnings on products that patients would ignore.45 Overall, there are many flaws with informed choice, including the inability for most drug patients to accurately assess questions of risk. However, it does eliminate some of the problems of Daubert.

A much better proposal than the Berger-Twerski informed choice plan is Margaret Bergers elimination of general causation in favor of a duty based good faith system. Under this, even if a chemical or product had caused harm to a population, the company would not be held liable if they had performed all the necessary testing, immediately responded to and reported information, and generally acted in a way that meant they could not foresee the dangers caused by their product.46 This system would encourage corporate responsibility and help provide adequate information about chemicals on the market. It would also help reduce the burden on judges and lawyers, as the proof needed to establish liability is the kind of evidence about a past event that our system handles well.47 It is easier for lawyers to produce a smoking gun, or a piece of evidence that conclusively shows fault on the part of the company, after the product is released. This proposal, although probably difficult to implement due to the need to establish requirements for proper testing, would greatly improve the toxic tort system.

41 Id. at 275.42 David Bernstein, Learning the Wrong Lessons from An American Tragedy: A Critique of the Berger-Twerski Informed Choice Proposal, 104 mIcH. l. reV. 1967 (2006).

43 Id. at 1973. 44 Id. at 1975. 45 Id. at 1978. 46 Margaret Berger, supra note 25, at 2117. 47 Id. at 2149.

14 WULR Vol IV, Issue II Winter 2011Finally, Catherine Struves hybrid qui tam48 system rewards

employees or otherwise knowledgeable people who speak out about the danger of products. This could diminish the problem of companies knowing their product is dangerous and still allowing it on the market. It removes scientific evidence from the scientifically inexperienced hands of judges and juries and places it in the hands of the FDA.49 Although much less radical than the elimination of general causation, and not as applicable to areas outside of pharmaceuticals, Struves system is also a viable solution.

conclusIon

The Daubert trilogy has had a profound impact on the way that evidence is handled within the United States Federal Court system. Whether one believes that the Daubert standard is only excluding invalid evidence or is leading to the demise of responsibility and liability in this country, it is undeniable that evidence evaluation plays a vital role not only in legal battles but also in policy. Daubert, Joiner and Kumho form the basis for an entirely new way of evaluating evidence, experts and the role of judges. Despite some initial reactions to Daubert claiming that the case would liberalize the standard for expert witness testimonial, it has in fact decreased the amount of evidence accepted by courts. There are a number of problems with the way courts have implemented Daubert, some more direct than others. These problems have resulted in proving causation in toxic tort cases to be well nigh impossible.50 Reform is necessary for a functional legal system capable of prosecuting corporate neglect and malfeasance. At this point, few options seem to remain to reform our legal system, with its central principle of general causation. As a country, we must reexamine how our legal system handles questions of causation and expert testimony, and not be afraid to make radical changes in order to produce just and equitable outcomes.

48 Qui tam comes from the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning [he] who sues in this matter for the king as [well as] for himself. 49 David Bernstein, supra note 42, at 267. 50 Margaret Berger & Aaron D. Twerski, supra note 5, at 267.

A Review of Military Commissions and the

War on Terror

By Genevieve P. Hoffman*

*Genevieve P. Hoffman is a junior at the University of Southern California, class of 2012. She is a double major in international relations and economics, with concentrations in security studies and international political economy. She plans to attend law school in the autumn of 2012, with the intent of studying constitutional and international law. She hopes someday to work in the government/policy arena.

A military commission is a tribunal convened in wartime to try enemy combatants accused of violating the laws of war, and has been used in the United States since the Revolutionary War. In recent years, controversy has arisen over the U.S.s use of military commissions to prosecute suspected terrorists in the War on Terror, as these tribunals do not satisfy many of the requirements concerning trial and prosecution as laid out in the Bill of Rights. While the use of military commissions in the War on Terror is technically legal under the Military Commissions Act of 2006, this paper examines whether or not such tribunals, which are frequently held in secret and give defendants little or no access to either the evidence against them or the possibility of appeal in federal courts, can possibly be compatible with the American principles of democracy.

16 WULR Vol IV, Issue II Winter 2011 17Hoffman

IntroductIon

The United States use of military commissions in the War on Terror has created a controversy that has dominated the legal world in recent years, provoking debates over the rights of accused terrorists, the presidents authority as Commander-in-Chief, and the extent to which Americans are willing to sacrifice their democratic principles in the name of national security.

This paper seeks to discover whether military commissions can be used as a legitimate tool in prosecuting the War on Terror, and if so, whether the United States has made appropriate use of them. The paper is divided into two main parts; the first will examine the historical use and legal limitations of military commissions in the United States from the Revolutionary War through World War II, and then in the present era. The second part will analyze military commissions in the context of the War on Terror, namely whether or not the institution can legitimately be applied to the present situation, how effectively the US has made use of military commissions in the fight against terrorism, and what the potential ramifications of those actions may be.

In recent years, the term military commission has been used so often, and so often incorrectly, by both the media and the

public that the true definition has become somewhat obscured. The term military commission as it will be used in this paper refers to a tribunal established under military authority and staffed by military personnel acting as both judges and jury. It is important to understand that military commissions are distinct from courts-martial; the latter are established by statute and are used in cases principally involving American military personnel and, very occasionally, civilians present with the U.S. military. In contrast, the former are derived primarily from both domestic and international sources of common law, and are used during wartime typically to try enemy combatants for violations of the laws of war.1 However, military commissions have also been used to try non-military crimes in areas where the military has taken control and the functions of ordinary courts have been suspended, as during the U.S. occupation of Mexico during the Mexican-American War and the Union occupation of the Southern states during and after the Civil War.2

For many years, the propriety of the use of military commissions constituted under proper circumstances and governed by appropriate rules and procedures has been beyond question, and recognized by each of the three branches of government.3 Thus, the question presented in this paper is not whether military commissions are constitutional in general; this is already well established. The question facing legal experts and policy makers today is whether or not the War on Terror qualifies as a proper circumstance, and if so, what the appropriate rules and procedures governing the commission proceedings should be.

Part I: a HIstorIcal overvIewIa. Military Commissions in the US: 1776-1945

Though not recognized by law in the United States

1 Detlev F. Vagts, Military Commissions: A Concise History, 101 am. J. Intl l. 35, 36-43(2007).2 Harold L. Kaplan, Constitutional Limitations on Trials by Military Commission, 92 u. Pa. l.rev. 119, 123-141 (1943). 3 Id. at 123.

Table of ContentsIntroductIon.......................................................16I: a HIstorIcal overvIew...........................................18Ia. Military Commissions in the US: 1776-1945 .........18 Ib. Military Commissions in the Post-9/11 Era......21II: an analysIs of mIlItary commIssIons In tHe war on terror...................................................................23IIa. Can Military Commissions be Applied to the War on Terror?....................................................................23IIb. Implications and Ramifications of the Military Commissions Act........................................................29conclusIon...............................................................34


until 1862, military commissions were practiced in the US long before that, and were justified and upheld by the common laws of war. The rules and procedures governing these commissions were derived from international law, drawing from international agreements dating back centuries, and acts and orders of military powers and recognized authorities. The first recorded use of military commissions in the US was the trial of British major John Andr, who was tried and convicted of spying by a panel of thirteen American generals, including Nathaniel Greene, the Marquis de Lafayette, and Baron von Steuben.4

Regular employ of military commissions first occurred during the Civil War, where they saw varied and widespread use. Thousands of cases were heard by military commissions set up in the Unions Western Theatre of Operations, most concerning the activities of so-called bushwhackers irregular bands of pro-Confederate fighters who frequently engaged in banditry and wore no military uniforms.5 During Reconstruction, these military tribunals were used to prosecute those who opposed the Union occupation by violent means, such as the Ku Klux Klan and other secret terrorist organizations. As the Army became involved in the actual governance of the South, military commissions were used increasingly in cases involving non-military crimes and non-military personnel, acting as legal stand-ins in states where the civil judiciary had collapsed.6 For the purposes of this paper, the most significant of these Civil War cases was Ex Parte Milligan, a habeas corpus petition heard by the Supreme Court in 1866. Milligan was the first case in which the Court placed significant constitutional limitations on the jurisdiction of military commissions, stating that no civilian could be tried by a military court in areas where civilian courts were functioning and available.7

Military commissions again came into extensive use during World War II. The most significant of these cases was once again

4 Id. at 121. 5 Vagts, supra note 1, at 38.6 Id. at 39.7 Kaplan, supra note 2, at 124.

heard by the Supreme Court, in Ex Parte Quirin (1942).8 This case is particularly significant in discussing military commissions used in the War on Terror, as the proceedings in this case served as a model for the commissions set up by President George W. Bush in November 2001 to try captured terrorists in the wake of the September 11th attacks.9

President Bushs actions in 2001 arguably resemble those of President Franklin D. Roosevelt, who issued a proclamation in 1942 which stated that any person charged with committing or attempting to commit warlike acts against the United States, or with violating the laws of war, would be subject to the jurisdiction of military tribunals.10 The accused parties in the Quirin case were eight German marines who landed in civilian clothing on beaches in New York and Florida with the intent to commit sabotage and espionage. The German marines were tried and convicted by a military tribunal convened under the presidents proclamation. The defendants appealed to the Supreme Court for a writ of habeas corpus, charging that the commission proceedings had been invalid on several grounds: first, that a military commission had no jurisdiction over the offenses charged; second, that the commission had no jurisdiction over the petitioners themselves; third, that the presidential proclamation was invalid; and fourth, that the proclamation conflicted with various acts of Congress.11 One of the petitioners was also a U.S. citizen, who argued that the commission had no jurisdiction over him in particular under the Courts ruling in Ex Parte Milligan.

The Quirin case marked the first time anyone questioned under whose authority a military commission could be convened. The Milligan case dealt only with a military commissions jurisdiction over civilians, although the Court had also maintained in that case that it was within the power of Congress to determinethe authorization of military tribunals.12 However,

8 See Ex Parte Quirin, 317 U.S. 1 (1942).9 Vagts, supra note 1, at 41.10 Kaplan, supra note 2, at 136.11 Id. at 137.12 Id. at 124. (quoting Ex Parte Milligan,71 U.S. 2 (1866).)


until Quirin, the ability of the president to convene military tribunals had never been questioned; it had been assumed that the ability to do so was implied in the presidents authority as Commander-in-Chief of the armed forces. Nor had those tribunals jurisdiction over foreign combatants ever been doubted. The issue of conflicting authority between Congress and the president had never been raised in this context.

In addressing the commissions jurisdiction over the defendants, the Court argued that Congress has the ability to define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations under Article 1, Section 8 of the U.S. Constitution, and that the law of war had previously been recognized by the Court as being included in the law of nations.13 The law of war, the Court continued, distinguishes between lawful and unlawful belligerents, a lawful belligerent being entitled to detention under regulated arrangements, and an unlawful belligerent being subject to trial by military commission for the acts rendering such belligerency unlawful.14 Thus, the Court ruled, unlawful belligerents such as the German marines were recognized as offenders against the laws of war. Jurisdiction over offenses against the laws of war was reserved to military commissions under the Articles of War, which were passed by Congress in 1916 and are the forerunner to the Uniform Code of Military Justice. In addressing the one U.S. citizens claim that the military commission had no jurisdiction over his person, the Court ruled that the status of an unlawful belligerent does not change by virtue of citizenship, for citizens who associate themselves with the enemy become enemy belligerents under the laws of war.15

The Courts ruling in Quirin left several questions unanswered. It specifically did not address, among other things, the constitutional authority of the president as Commander-in-Chief to convene military commissions without Congressional sanction. In addition, neither the extent of the jurisdiction of a military commission to try offenders against the laws of war, nor

13 Id. at 140. (quoting Ex Parte Milligan,71 U.S. 2 (1866).)14 Id. 15 Id. at 141.

the enumeration of offenses that constitute such violations were ever discussed.16 However, the ruling set a significant precedent very relevant to the War on Terror and the US use of military commissions today by establishing an unlawful belligerent as an offender against the laws of war, making no distinction between such belligerents and any U.S. citizens who side with them, and confirming the jurisdiction of military commissions over such belligerents. Even the Courts decision not to address the questions discussed above has relevance, as the current controversy has centered around many of these unanswered questions.

Ib. Military Commissions in the Post-9/11 Era

Having established the historical and legal context surrounding the use of military commissions in the US, the use of these military commissions in prosecuting the War on Terror can now be addressed. On November 13, 2001, nearly two months to the day after the devastating September 11th attacks, President George W. Bush issued a military order for the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, which stated that certain non-citizens of the US whom the president declared were former or current members of al-Qaeda, or who had engaged in acts of international terrorism against the United States, or who had sheltered members of such organizations, would be subject to military detention and trial by military commission.17 A prison camp was established at the U.S. naval base at Guantnamo Bay, Cuba, to hold these detainees.

The tribunals set up as a result of this order were specifically designed not to adhere to the standards set for such tribunals under both the Geneva Conventions of 1949, of which the United States is a signatory, or the Uniform Code of Military Justice, passed by Congress in 1950. Such protections guaranteed by those two bodies, the government argued, did not apply to the detainees held at Guantnamo Bay, as the detainees were unlawful

16 Id. 17 Daryl A. Mundis, The Use of Military Commissions to Prosecute Individuals Accused ofTerrorist Acts, 96 am. J. Intl l. 320, 320-322 (2002).


belligerents and so not entitled to the same protections afforded traditional prisoners of war. The commissions at Guantnamo were further declared to be outside the jurisdiction of the federal court system, denying the detainees held there the right to appeal for a writ of habeas corpus.18

As word of the tribunals gradually leaked to the public, questions were broached over a number of legal and humanitarian issues. The public raised concerns over the denial of habeas corpus and the right of appeal, as well as over allegations that many of the detainees confessions had been forcibly coerced, in violation of both domestic and international law. Still, there remained the issue from the Quirin case some sixty years earlier: that of the presidents constitutional authority to convene military commissions without the sanction of Congress. Particularly at issue in this instance was the question of whether the president could unilaterally convene military commissions that violated previous acts of Congress, in this case, the Uniform Code of Military Justice.

Since 2001, the Supreme Court has attempted to address some of these issues. In Rasul v. Bush (2004), the Court ruled that the right to habeas corpus did, in fact, apply to the detainees at Guantnamo Bay, despite their foreign status and the fact that they were being held outside the United States.19,20 Most significantly, in Hamdan v. Rumsfeld (2006), the Court struck down the military commissions set up by the presidential order on statutory grounds, arguing that the commissions violated Article 21 of the Uniform Code of Military Justice, which requires any military tribunals convened by the president to conform to the laws of war.21 The Court argued that because the tribunals violated both the Uniform Code of Military Justice and the common Article 3 of the Geneva Conventions (which provides protections for captured enemy combatants and prisoners of war), Congressional sanction was

18 Id. at 322.19 David A. Martin, Judicial Review and the Military Commissions Act: On Striking the RightBalance, 101 am. J. Intl l. 344, 349-350 (2007). 20 See Rasul v. Bush, 542 U.S. 466 (2004).21 See Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

needed to sustain them.22 It should be noted that the Courts ruling in Hamdan did not strike down the use of military commissions in the War on Terror, nor did it address the rights violations that had been perpetrated under the commissions; the ruling essentially remanded the matter to Congress.23

Congress responded three months later by passing the Military Commissions Act of 2006 (MCA).24 The Act established what the Court had ruled was needed in order to sustain military tribunals in the Hamdan case: Congressional authorization for the tribunals set up under the 2001 presidential order. It provided the president with the authority to convene military commissions to try unlawful enemy combatants for violations of the laws of war, and established basic rules and procedures to govern the trials.25 However, the Act, like the Courts ruling in Hamdan, still failed to address violations and the potential for violations of the rights of detainees, by essentially allowing the executive branch to interpret and apply the common Article 3 however it chose. The ramifications of these problems will be addressed later in this paper.

Part II: an analysIs of mIlItary commIssIons In tHe war on terror

IIa. Can Military Commissions be Applied to the War on Terror?

As stated earlier, this paper attempts to answer the question of whether or not military commissions can be used legitimately in the War on Terror, and if so, what constitutional or legal limits apply or should be placed on the use and conduct of such commissions. Having examined both the historical and present use of military commissions, their applicability in the context of the War on Terror can now be understood. The first criterion to be examined in determining whether

22 Id. at 350.23 Id. at 349. 24 See Military Commissions Act of 2006, HR-6166, 109th Cong. 25 Carlos M. Vzquez, The Military Commissions Act, the Geneva Conventions, and the Courts:A Critical Guide, 101 am. J. Intl l. 73, 79 (2007).


military commissions can be applied to the War on Terror is the war aspect of the fight against international terrorism. Military commissions, by definition, are used during wartime to try members of enemy forces. It must be decided then, whether the War on Terror actually qualifies as a war; if so, then the use of military commissions to try members of enemy forcesmembers of terrorist groupsmight seem appropriate. An assessment of the War on Terror demonstrates that it does fulfill this requirement. War, by definition, is a state of open and hostile conflict between two parties. In hindsight, the cumulative chain of attacks carried out by al-Qaeda against American targets in the 1990sthe 1993 ambush of American soldiers in Mogadishu; the 1993 truck bombing of the World Trade Center (which was intended to bring both towers down); the 1995 bombing of a U.S. military training center in Riyadh, Saudi Arabia; the 1996 bombing of the Khobar Towers in Dhahran, Saudi Arabia; the simultaneous 1998 bombings of the U.S. embassies in Kenya and Tanzania; and the 2000 bombing of the USS Cole in Yemenseems to fit this definition of war.26 Al-Qaeda has even officially declared war on the United States; after the bombings of the embassies in 1998, al-Qaeda leader Osama bin Laden called for every Muslim in every countryto kill and fight Americans and their allies, whether civilian or military.27 Al-Qaedas open and declared intent to find and use a nuclear weapon against the US and its allies also might suggest that a war model is appropriate.

The American response to al-Qaedas attacks fits the given description of war as well. The 2001 invasion of Afghanistan and the 2003 invasion of Iraqcarried out in the name of combating international terrorism involved the massive mobilization of U.S. military forces into those countries, and in the case of Afghanistan, the mobilization of international forces as well. The aftermath of 9/11 and the ensuing war in Afghanistan represented the first time in the history of the North Atlantic Treaty

26 Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 am. J. Intl l. 328,330-335 (2002). 27 mIcHael B. oren, Power, faItH, and fantasy: amerIca In tHe mIddle east: 1776 to tHePresent 557 (W.W. Norton & Co. 2008).

Organization (NATO) that Article 5 of the organizations charterwhich states that an attack on a member state constitutes an attack on all member stateswas invoked.28 Even as these wars draw to a closecombat operations in Iraq were officially declared at an end as of Autumn 2010 amid increasing domestic political pressure to withdraw U.S. troops from Afghanistanthe fight against al-Qaeda continues. If the last ten years are any indication, the US is likely to continue to carry out this fight according to a war model.

Furthermore, the lack of an official Congressional declaration of war also does not determine whether or not the War on Terror can be considered a true war. Under the 1949 Geneva Conventions, the laws of war apply in any state of armed conflict.29 Congress itself has clearly authorized the use of force in combating terrorism in Iraq, Afghanistan, and elsewhere, as it has continued funding these operations since the war on terrorism began, officially or unofficially, in 2001. Thus, as long as the US remains in a state of armed conflict with al-Qaeda and other terrorists, and as long as these groups continue to wage a self-declared war against the United States and its allies, it is appropriate to consider the War on Terror under a war model. However, a state of war is not the only requirement that must be met for the use of military commissions to be appropriate. Military commissions are primarily used to try combatants for violations of the laws of war. The next question to examine, then, is whether terrorist acts can be considered crimes against the laws of war. Evidence suggests that, in this case, they are. The US is justified in considering al-Qaeda terrorists unlawful belligerents, as al-Qaeda fails to fulfill four of the requirements of lawful belligerency: it has no responsible commander, as it is organized in a loose network of independent cells not answerable to any overall command or leader; its operatives have no distinctive and visible insignia, nor do they carry their arms openly; and it fails to observe the laws and customs of war.30 One of these customs is the principle of distinction, which prohibits the deliberate targeting

28 Wedgwood, supra note 22, at 330.29 Id. at 335.30 Id.


of civilians and other non-combatants. By its own admission, al-Qaeda purposefully violates this principle; its published doctrine declares that it considers Western civilians to be just as guilty as American and Israeli political and military leaders, and calls on its followers to attack civilians indiscriminately.31

The violation of the principle of distinction is a prima facie violation of the laws of war; any violators of this provision are automatically subject to trial by military commission. Furthermore, according to the Supreme Courts ruling in Quirin, unlawful belligerents may be considered violators of the laws of war, and as such, may also be tried by military commission. As both admitted violators of the principle of distinction, and unlawful belligerents, al-Qaeda terrorists are justifiably tried by military commission for two clear reasons. Under both U.S. and international law, captured members of al-Qaeda are subject to the jurisdiction of military commissions. Thus, because the War on Terror can be considered an armed conflict, and because terrorists can be considered violators of the laws of war, it is appropriate to try captured terrorists by military commission. However, there are also other more practical considerations that make trial by military commission a useful tool in prosecuting the War on Terror, all of which involve the difficulty of prosecuting terrorists in civilian courts.

There are several challenges that accompany trying terrorists in the civilian court system. The first challenge concerns evidence: the exclusionary rule bars the use of any evidence found to have been acquired illegally by federal authorities. Under ordinary circumstances, this rule is quite proper, and is indeed a cornerstone of the American legal system. However, it can be problematic in prosecuting cases of terrorism, as much of the evidence and information concerning an individuals involvement in terrorist plots comes from secret intelligence information gathered by means considered illegal under civilian evidentiary rules. This is particularly true in cases involving terrorist operatives captured abroad. U.S. law provides legal channels for the

31 Id. at 329.

acquisition of domestic intelligence through courts convened under the Foreign Intelligence Surveillance Act of 1978 (known as FISA courts), but no such legal channels exist for foreign intelligence gathered abroad; espionage by its very nature is an illegal means of acquiring information. However, some of the most crucial information concerning terrorism and an individuals involvement in terrorism is gained through these means. The fact that this information is excluded from use in federal court suggests that the civilian court system is perhaps an inappropriate place to try such cases. Trying terrorists in civilian court presents a dangerous choice: either to allow the use of evidence that is considered illegal under civilian evidentiary rules, and in so doing, set a perilous precedent undermining the principle behind the exclusionary rule, or to uphold the exclusionary rule and prohibit the use of important evidence, potentially allowing a terrorist to walk free.

Trial by military commission solves this dilemma. In a military commission, most intelligence information may be presented legally, without fear of undermining the exclusionary rule. A military commission would also ensure the security of such information. Even if secret intelligence could be allowed in civilian court, such information would then be available to both the defendant and the public, which could compromise intelligence techniques and sources. Evidentiary rules concerning chain of custody and authentication could also be problematic as evidence acquired in a battlefield setting, where witnesses may be scattered or deceased, might not stand up to these requirements.32 Military law, unlike civilian law, is designed to deal with these problems.

Second is the problem of securing the trial itself. Usually, the safety of the judges, jurors, and attorneys involved in civilian criminal trials is a relatively small issue, but in cases involving al-Qaeda members, concerns have been raised about the difficulty of protecting such individuals as well as the integrity of the trial itself from reprisals by active members of al-Qaeda. For example, during the trial of Mahmud Abouhalima, Ahmad Ajaj, Nidal Ayyad and Mohammed Salameh, the men accused of

32 Id. at 331.


set up.36 Thus, in addition to theoretical and legal reasons, using

military commissions to try captured terrorists makes practical sense as well. However, although it has been determined that the use of military commissions is appropriate to the War on Terror, this does not mean that the US has used them appropriately. There are problems with the way the US has conducted such commissions, many of which are codified in the Military Commissions Act of 2006 (MCA). These problems have the potential to createand indeed, have already createdlegal and political ramifications that could negatively impact U.S. interests abroad, including U.S. counter-terror operations.

IIb. Implications and Ramifications of the Military Commissions Act

In Hamdan v. Rumsfeld (2006), the Supreme Court struck down the military commissions convened under the 2001 presidential order for being inconsistent with the Uniform Code of Military Justice and the laws of war, including the Geneva Conventions, as incorporated in that statute. The MCA was Congress attempt to provide the president with the legal framework for conducting the commissions at Guantnamo Bay in a way that would hold up to judicial scrutiny. However, as previously stated, the Act failed to address the fundamental problems surrounding the original commissions. The first problem is the treatment of detainees in U.S. custody. When President Barack Obama first took office, he ordered the suspension of the commission proceedings at Guantnamo Bay, until the practice could be reviewed, and until it could be determined whether it was possible to try the detainees held there in civilian courts. This paper has already discussed why it may be difficult to do so. The administration apparently reached a similar conclusion, as the commissions were resumed in the middle of 2009, although

36 Id. at 333.

carrying out the 1993 World Trade Center bombings, guards with automatic weapons had to be stationed around the courthouse in downtown Manhattan due to the considerable security concerns. The federal judges presiding over the case were provided with twenty-four hour protective details, and have had such details ever since. In the aftermath of these trials, al-Qaeda carried out several attacks abroad in retaliation.33 In the event of another public trial of a member of al-Qaeda or some other violent terrorist organization, such reprisals could conceivably occur again, possibly within the US itself.

The idea of convening an international trialsimilar to the war crimes tribunals convened by the United Nations Security Council in the cases of Rwanda and the former Yugoslaviahas also been presented as an alternative to military commissions. However, such trials would face many of the same problems concerning the admissibility of evidence, the security of intelligence information, and the safety and security of the trial and its participants.34 International politics presents a third complexity. An international tribunal would likely wish to include representatives of the Muslim world in order to guard against cultural bias as well as to enhance the perceived legitimacy of the tribunals verdict. However, it can be assumed that few Arab or Muslim countries could nominate a judge to serve on the tribunal without fear of reprisal from either their own militant factions or from al-Qaeda itself. Indeed, Osama bin Laden has already announced that any Muslim government that cooperates against him will be considered an enemy of the Ummah, the Muslim world.35 There is also the question of Israels place on such a tribunal. Al-Qaedas declaration of war included Israel as well as the United States; theoretically, this should accord Israel a place in the proceedings. But such a move would likely raise controversy in the international arena, evoking the ire of other Middle Eastern participants. This too, could impede the proceedings of any trial

33 Id. 34 Id. at 332. 35 Id.


regarding human rights, such provisions in the MCA could have wide-reaching legal and political ramifications for the US abroad. The US ability to succeed in the War on Terror depends increasingly on the cooperation it receives from international allies. In order to be successful in finding, tracking, capturing, detaining, interrogating, transferring, and extraditing terrorists, the US requires the use of foreign military facilities, intelligence assets, and foreign approval of certain aspects of U.S. counterterrorism policy. In times past, the US received considerable international support, and could undertake such activities on foreign soil with very little scrutiny.40 That is no longer the case. The highly publicized reports concerning the abuse of detainees in U.S. custody, which included the detention without trial (in some cases for years) of suspected terrorists in secret prisons, and the seizure and rendition of terror suspects to countries where they are subjected to torture or harsh interrogation techniques, have considerably undermined public support for the US in countries upon which it must depend for assistance in the War on Terror. These strained international relationships could potentially jeopardize future U.S. counterterrorist operations.41

The MCA is also problematic in that it has effectively redefined combatancya concept fundamental to the laws of warin an attempt to capture not only suspected terrorists, but those thought to be giving support to terrorists.42 Under the MCA, an unlawful belligerent is now defined not only as someone directly engaged in hostilities against the United States, but also as someone who has purposefully and materially supported hostilities against the United States.43 In addition to raising concerns over how this provision may be applied to the activities of ordinary citizens living in the US, this definition also creates problems in the context of the laws of war by blurring the distinction between combatants and noncombatants.44

40 Id. at 69. 41 Id. at 72.42 Id. at 59.43 Id. 44 Id. at 60.

in doing so, President Obama also stated that detainees would be tried in federal civilian courts whenever possible. The MCA was amended under the Military Commissions Act of 2009 in an attempt to make the tribunals at Guantnamo Bay more palatable to both the judiciary and the public.37 However, the amendment appears to be in name only, as the updated version of the MCA contains few additional provisions to protect the rights of detainees.

It is true that unlawful enemy combatants, such as captured terrorists, are not entitled to all the protections afforded prisoners of war under the common Article 3 of the Geneva Conventions; however, they are still entitled to basic protections considered fundamental to a civil society. The MCA provides only the barest protections required under the common Article 3, and even these it does not protect very successfully. The MCAs standards for the interrogation of detainees are perhaps the perfect example. The Act does provide prohibitions against the cruel, inhuman, or unusual treatment or punishment of all those in U.S. custody, regardless of nationality or location. However, it allows for the possibility of admissible evidence to be obtained through varying degrees of coercion forbidden under the Geneva Conventions, by giving the president the power to approve interrogation methods based on the presidents own interpretation of the common Article 3.38 As has been demonstrated, the executive branch has had a tendency to take a rather expansive view of what constitutes permissible interrogation methods: water boarding, stress positions, humiliating and degrading treatment, and the like. The MCAand its subsequent amendment in 2009 allows information obtained through such methods to be used at trial, trampling over the law of war provisions contained in the Geneva Conventions that had previously been viewed as imposing absolute prohibitions against such treatment.39

Aside from potentially violating the USs own principles

37 See Military Commissions Act of 2009, H.R. 2647, 110th Cong. 38 Jack M. Beard, The Military Commissions Act of 2006 and US Counterterror Operations, 101am. J. Intl l. 56, 56-73 (2007).39 Id. at 59.


objected to the use of forced confessions, and the general violation of detainee rights, that occurred during the trials by military commission of Japanese soldiers for violations of the laws of war.47 His observations and reflections on the misuse of such commissions, and the potential impact of such abusive policies on American society, are eerily prescient, and offer a powerful perspective from which to consider such actions that is relevant to the case of military commissions in the War on Terror. They are as follows:

Neither clearer proof of guilt nor the acts of atrocity of the Japanese troops [can] excusethe promulgation of a directive containing such obviously unconstitutional provisions as those approving the use of coerced confessions or evidence and findings of prior mass trials. To try the petitioner in a setting of reason and calm, to issue and use constitutional directives to obey the dictates of a fair trial are not impossible tasks. Hasty, revengeful action is not the American way. All those who act by virtue of the authority of the United States are bound to respect the principles of justice codified in our Constitution. Those principles, which were established after so many centuries of struggle, can scarcely be dismissed as narrow artificialities or arbitrary technicalities. They are the very life blood of our civilization.

Today the lives ofleaders of enemy forces vanquished in the field of battle are taken without regard to due process of law. There will be few to protest. But tomorrow the precedent here established can be turned against others. A procession of judicial lynchings without due process of law may now follow. No one can foresee the end of this failure of objective thinking and of our adherence to our high hopes of a new world. The time for effective vigilance and protest, however, is when the abandonment of legal procedure is first attempted. A nation must not perish because, in the natural frenzy of the aftermath of war, it abandoned its central theme of the dignity of the human personality and due process of law.48

To allow military commissions to prosecute captured terrorists using coerced confessions, and to deny these detainees

47 See Homma v. Patterson, 327 U.S. 759 (1946).48 Vagts, supra note 1, at 42-43. (quoting Homma v. Patterson, 327 U.S. 759 (1946).

The MCA revises the laws of war as embodied in the Geneva Conventions by reinterpreting the protections guaranteed captured combatants contained in the common Article 3, and by redefining combatancy itself. As a great power with global military interests, the US has powerful incentives to participate in formulating, supporting, and strengthening the Geneva Conventions and the laws of war. Such legal provisions promote the rule of law, provide for the protection of captured U.S. military personnel, and more generally promote the respect for human rights that has always been a part of the U.S. international policy agenda.45 Yet the MCAs revision of key principles of the laws of war severely undermines the credibility of U.S. commitment to the Geneva Conventions. As a world power, the US has the ability to influence the actions of others in the international system simply by leading by example. If the US fails to support its commitment to the Geneva Conventions and the laws of waras it has done with the MCAother countries are likely to follow suit in relaxing the stringency of their own commitments, which could have future consequences for U.S. military operations and U.S. military personnel.46

Lastly, and most importantly, the manner in which the US has used military commissions to prosecute the War on Terror violates its own fundamental principles. U.S. legal philosophy rejects the principal of inter arma silent leges: among arms, the laws fall silent. In other words, it rejects the notion that during wartime, or times of national crisis, U.S. laws and principles no longer apply. The Constitutionthe lex suprema of the United Statesdoes not only apply during peacetime, it applies always. The principles of habeas corpus and the protection of human rights are enshrined in the Constitution. They are the bedrock on which the US was founded, and must always be respected to remain consistent with U.S. fundamental principles.

In his dissenting opinion in the World War II case Homma v. Patterson (1946), Supreme Court Justice Frank Murphy

45 Id. at 64. 46 Id. at 66.

34 WULR Vol IV, Issue II Winter 2011

the basic protections contained in the common Article 3 of the Geneva Conventions and in the U.S. Constitution, would be to abandon the principles that are, as Justice Murphy stated, the lifeblood of our civilization.

conclusIon

This paper has determined that military commissions may be legitimately used in the War on Terror, as terrorists are unlawful belligerents who violate the laws of war, and as such, are subject to the jurisdiction of military commissions. However, in order to maintain legitimacy, such commissions must themselves uphold both domestic and international laws and principles. The MCA, and more generally, the policies surrounding the conduct and proceedings of the military tribunals used in the War on Terror, fail to do this. On the contrary, they defy the very principles they are being used to protect by undermining the democratic ideals upon which the US was built, thereby potentially compromising U.S. strategic interests and operations abroad. While military commissions can be a useful and effective tool in prosecuting the War on Terror, they must be applied according to the principles of due process and with respect for human rights and the laws of war. The US has historically afforded its enemies the same civil and legal protections as its own citizensas far back in its national history as the trial and acquittal of the British soldiers charged in the Boston Massacrebecause it regards these protections as being necessary to a free, just society. Maintaining these principles in the current crisis is integral to preserving the tradition of justice upon which the U.S. legal system is built.

Determining the Legality of Enforcing Immigration Laws: Arizona Senate Bill 1070 and Redefining

States Ability to Enact Immigration Policy in the United States

By Brian Jordan*

* Brian Francesco Jordan is a junior at The Ohio State University where he is double majoring in political science and history. Brian is currently the Legislative Page for Ohio State Senator Mark Wagoner and has researched Italian immigration, 1950s federal immigration law, and Italian mutual aid societies. Brian is utilizing his research to complete an honors thesis under Professor Donna J. Guy. Brians interest in immigration issues originates from the significance he places on the experiences of his family members, who emigrated from Italy to the United States during the twentieth century. Brian plans to attend law school in autumn 2012.

Immigration policy in the United States was drastically called into question following the unsettling events of Sept. 11, 2001, which heightened a sense of urgency to secure Americas borders in order to protect national security interests. The beginning section of this article explores the impact of Sept. 11, examines the various changes to the enforcement of immigration laws by the executive branch, and provides the political and legal contexts surrounding the immigration debate in the United States. By examining Arizona Senate Bill 1070, this study seeks to determine whether states have legal grounds to enforce federal immigration laws. The passage of this bill has elicited a maelstrom of political debate that has polarized the electorate and resulted in the United States Department of Justice filing a federal lawsuit against the State of Arizona. The third section analyzes the legal challenges to SB 1070 and reviews a decision currently pending before

36 WULR Vol IV, Issue II Winter 2011 37Jordan

IntroductIon

Countless individuals have endured long distances and overcome numerous obstacles to immigrate to the United States in hopes of political refuge, social mobility, and ultimately an improved way of life. Immigrants have been accepted with tolerance and stigmatized with fear since the beginning of mass migration to America. These attitudes towards immigrants have evolved since the nineteenth century and still hold sway in current political dialogue. After the terrorist attacks of Sept. 11, 2001, immigration policy in the United States changed dramatically. A sense of urgency to fortify Americas borders and protect national security interests intensified when the United States Department of Justice (DOJ) acted swiftly in granting state and local authorities the power to enforce federal immigration laws. The first section of this article explores the impact of Sept. 11, and analyzes changes to immigration law enforcement by various presidential administrations.

In a case study of Arizona Senate Bill 1070 (SB 1070), the next section addresses some currently unresolved questions over immigration enforcement by examining the legal issues raised by the bills passage. For example, do the provisions of Arizona Senate Bill exceed the maximum legal authority permitted by federal law? What aspects of Arizona SB 1070 does the Obama DOJ consider inconsistent with federal law? How should the federal court system resolve the discrepancies related to state immigration law? SB 1070 has elicited a frenzy of political debate that has polarized the electorate and resulted in the DOJ filing a federal lawsuit against the State of Arizona. The third section analyzes the legal challenges to SB 1070 and reviews the case pending before the United States Ninth District Court of Appeals.

The American legal system has yet to resolve important legal uncertainties over immigration issues due to disagreement among federal courts. A decision among the courts could have far-reaching implications for the enforcement of immigration policies and could severely limit states authority. The final section

Table of ContentsIntroductIon.......................................................................37I: LegaL and PoLItIcaL contexts In the enforcement of ImmIgratIon Laws.............................................................38Ia. The Debate on Immigration in a Post-Sept. 11 Society.......38Ib. The Power of Presidential Administrations in Enforcing Federal Immigration Policies...............................................40II: case study: arIzona senate BILL 1070....................43Ia. Arizona SB 1070 & Lack of Federal Border Enforcement..43IIb. Details and Legal Provisions of Arizona Senate Bill 1070...45IIc. Public Reaction and Political Consequences....................47III. chaLLenges to the LegaLIty of arIzona senate BILL 1070...48IIIa. Early Legal Challenges to SB 1070..................................48IIIb. United States v. Arizona..................................................50IV. the future enforcement of ImmIgratIon Laws and uPhoLdIng arIzona senate BILL 1070..................52IVa. States Inherent Authority to Enforce Federal Immigration Laws.....................................................................................52IVb. SB 1070: A State Law Concurrent and Consonant With Federal Law...........................................................................56concLusIon.......................................................................58

the United States Ninth District Court of Appeals. Finally, this article attempts to resolve two questions facing the American legal system: 1) whether state and local law enforcement officers have jurisdiction over civil and criminal violations of immigration law, and 2) whether a state has constitutional authority to enact immigration laws so long as these laws comply with and do not usurp congressionally-enacted federal law.


attempts to answer two prominent questions facing the American legal system: 1) whether state and local law enforcement officers have the power to enforce civil and criminal violations of federal immigration law and 2) whether a state has Constitutional authority to enact immigration laws so long as these laws do not infringe upon the supreme authority of federal law. I argue that states have the inherent authority to make arrests in order to assist in enforcing federal immigration laws. Furthermore, I contend that Arizona Senate Bill 1070 should be upheld under the doctrine of dual sovereignty, which allows both state and federal immigration laws to coexist so long as the former does not usurp the authority of the latter.

Part I: LegaL and PoLItIcaL contexts In the enforcement of ImmIgratIon Laws

Ia. The Debate on Immigration in a Post-Sept. 11 Society

After the attacks of Sept. 11, 2001, the United States government was compelled to reaffirm the national security interests of the American people, which included securing the nations borders. As one scholar noted, On that day, America went from being a nation of immigrants to a nation of suspects.1 The apparent ease with which nineteen aliens legally entered the U.S., overstayed their visas, and committed acts that killed nearly 3,000 people demonstrated the weaknesses associated with enforcing immigration laws.2 Following these attacks, it became increasingly clear that the federal government needed to adequately enforce immigration laws to prevent future acts of terrorism on American soil.

As the urgency to crack down on illegal immigration increased, the lack of communication and cooperation among federal, state, and local authorities received intense criticism.3

1 April McKenzie, A Nation of Immigrants or a Nation of Suspects? State and Local Enforcement of Federal Immigration Laws Since 9/11, 55 aLa. L. reV., 1149, 1149-1155 (2004).2 See Kris Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Laws, 69 aLa. L. reV. 179, 179 (2005).3 See Carrie Arnold, Racial Profiling in Immigration Enforcement: State and Local Agreements to Enforce Federal Immigration Law, 49 arIz. L. reV. 113, 113-115 (2007).

Moreover, the federal government realized its limitations in terms of resources and its inability to secure Americas borders. Faced with these challenges, in 2002 the DOJ issued a memorandum agreement granting state and local agencies the power to enforce immigration polices as long as states complied with federal stipulations. This decision forms the context for the contemporary debate on immigration because the DOJs stipulations, which allowed state enforcement of federal laws, have changed under different presidential administrations.

While some state governments have sought to uphold national security by coordinating with the federal government and enacting their own laws, some authorities have clashed over how these regulations should be enforced. For instance, the federal government views immigration law enforcement as a foreign policy issue, while state and local governments approach it at the domestic level.4 Several states have enacted their own laws related to immigration because they view the federal government as inadequately providing the resources necessary for protecting the border from illegal immigration and contraband trafficking. Many states have implemented tough penalties for harboring or hiring illegal immigrants due to perceived failures by the DOJ and the Department of Homeland Security (DOHS) to prosecute and deport.

Following Sept. 11, the federal government realized its limited ability to enforce immigration law and thus delegated immigration enforcement to the states. Maria Parra-Chico argues that the federal government subcontracted the enforcement of immigration law to state and local sectors through the criminalization of immigrants and the delegation of criminal and civil immigration law enforcement.5 As will be discussed in the following section, a 2002 Memorandum Agreement issued by the DOJ allowed state officers the authority to carry out immigration laws. The actions taken by the federal government reflected a desire to maximize every resource available to secure Americas

4 Maria Parra-Chico, An Up-Close Perspective: The Enforcement of Federal Immigration Laws By State and Local Police, 7 SEATTLE J. SOC. JUST. 1 (2008-2009).5 Id.


borders and protect against future acts of terrorism. However, the federal delegation of immigration law would create legal uncertainty among state governments when a different presidential administration enacted policy changes to the 2002 Memorandum.

Ib. The Power of Presidential Administrations in Enforcing Federal Immigration Policies

In 2002, under President George W. Bush, U.S. Attorney General John Ashcroft issued a memorandum for the Office of Legal Counsel (OLC) overturning the Clinton Administrations stance on state enforcement of immigration policy.6 The new memorandum concluded that states have the inherent power, subject to federal preemption, to make arrests for violation of federal civil and criminal immigration law.7 Under the OLC 2002 Memorandum, localities and states desiring to enforce civil and criminal immigration violations could enter into a special agreement with the Department of Justice. As Carrie Arnold notes, the Immigration and Nationality Act (INA) provides for the training and authorization of state and local officers to enforce immigration law if the jurisdiction enters into a Memorandum of Agreement [MOA] with the DOJ.8 Thus, if a state entered into an MOA, local officers would receive federal training on proper enforcement techniques.

With the OLC Memorandum, Ashcroft announced the National Security Entry-Exit Registration System. The program required alien visitors to provide fingerprints and extensive background information to the federal government.9 The new policy also imposed departure controls on high-risk visitors and stipulated that all aliens periodically re-register with U.S. immigration officials.10

The policy changes enacted by the Bush Administration

6 See Arnold, supra note 3, at 113.7 Id. at 114.8 Id. at 115.9 Kobach, supra note 2, at 180.10 Id.

reflect the influence that a presidents political ideology can have in amending and enforcing federal immigration laws. Bushs tough stance against terrorism and focus on national security were partly caused by the ineffectual enforcement of immigration law, and sought to amend existing oversights. The change in granting states the power to address violations of immigration law reflected this desire by the Bush Administration to make the United States safer and better protected from terrorism in a post-Sept. 11 society.

With the 2009 inauguration of Barack Obama, the federal governments stance on enforcing immigration laws changed due to differences in political outlook. Obama believed that states should only enforce immigration laws in criminal, not civil instances. Thus, Obamas view on state immigration enforcement was narrower in scope and more moderate compared to Bushs expansive enforcement policies. After Obama took office, the policy differences over immigration enforcement were reflected through adjustments to the Bush MOA program. In late 2009, DOHS Secretary Janet Napolitano announced that the MOA Program would be refocused to target criminal acts by illegal aliens.

Instead of allowing state officers jurisdiction over civil and criminal violations of immigration laws, local authorities could now only handle criminal acts.11 As Jon Feere explains, the new MOA program was designed to only support local law enforcements identification of dangerous criminal aliens. Under the Purpose section of the new MOA, it is described as a program designed to carry out the removal of criminal aliens (emphasis added).12

Many have criticized the changes in legal policy by the Obama Administration and believe it will severely hinder state authorities ability to effectively enforce immigration laws. Obamas reinterpretation of the MOA policy has far-reaching implications on a program that has resulted instate and local authorities identification of over 120,000 illegal aliens for removal

11 Jon Feere, The Obama Administrations 287(g): An Analysis of the New MOA, center for ImmIgratIon studIes, (2009), http://www.cis.org/ObamasNew287g (last visited Nov. 6, 2010.)12 Id.


since 2006.13 The narrowed focus of the new MOA program embraces a pre-9/11 mentality and does not fully safeguard Americas national security.14 For instance, the 9/11 Commission Report touched on the danger of not allowing state and local law enforcers to cooperate with the federal government to enforce immigration laws. It concludes that the domestic agencies never mobilized in response to the threat. They did not have direction and did not have a plan to institute. The borders were not hardened State and local law enforcement were not marshal

Volume IV Issue II

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frye standard

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