A Terrible Swift Sword

See in particular Proclamation 7463 Declaration of National Emergency by Reason of Certain Terrorist Attacks, Federal Register September 18 2001 and the USA Patriot Act of 2001, 107th Congress 1st Session House of Representatives 3162 Public Law No 107-56.

See Military Order of 13 November 2001: Detention, Treatment and Trial of Certain Non Citizens in the War Against Terrorism. The Military Order has been subject to stringent criticism. See ‘Seizing Dictatorial Power’, New York Times, 15 November 2001; ‘A Travesty of Justice’, New York Times, 16 November 2001; ‘Terrorists ‘don't deserve’ US judicial rights’, Australian, 16 November 2001, p.13; and ‘Bush orders secret terror trials’, Age, 16 November 2001, p.10.

For example, s.1(e) of the Order states that: ‘To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals’.

For example, s.1(g) of the Order states that ‘I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that the issuance of this order is necessary to meet the emergency’.

See Ex Parte Quirin et.al 317 US 1 (1942). The German enemy saboteurs were charged with violation of the laws of war; relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy; spying; and conspiracy to commit each of these offences: 317 US 1, 8 (1942). Six of the saboteurs were subsequently executed following conviction by military tribunals and two were sentenced to long-term imprisonment.

The USA Patriot Act of 2001 provides expansive definitions of terrorism: See s. 802 (definition of domestic terrorism) and s.808 (definition of Federal crime of terrorism).

Military Order, s.1(g).

On the constitutional framework for this point, see Tribe Laurence American Constitutional Law, 3rd edn, Volume 1, Foundation Press, New York, 2000, pp.298–300.

The length of detention under the Order appears indeterminate. Section 3, the Detention Authority of the Secretary of Defense specifies no time limits, and s.3(e) merely allows the Secretary of Defense to prescribe ‘other conditions’.

Slaughter Anne-Marie , Professor of International Law, Harvard University, Media interview, Lateline, ABC, 21 November 2001.

This is a contentious matter, likely to be challenged in the United States Supreme Court. In Ex parte Quirin et al, the United States Supreme Court observed: ‘We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war’: 317 US 1, 45–46 (1942). The court also considered it unnecessary for the present to determine the scope of Presidential power as Commander in Chief to create military tribunals without the support of Congressional legislation: 317 US1, 29 (1942).

See ‘Secrecy cloaks US detentions’. Age, 16 October 2001, p.12 and ‘Trapped by fear and suspicion’, Age, 27 November 2001, p.10.

See ‘Bush to Subject Terrorism Suspects to Military Trials’, New York Times, 14 November 2001; ‘Proposed US military tribunals under fire’, Media report, Lateline, ABC, 21 November 2001.

United States v McVeigh 153 F.3d 1166 (1999).

United States v Salemah 856 F. Supp 781 (1994) (US District Court); 2001 US App LEXIS 17685 (US Court of Appeals).

United States v Bin Laden et al 156 F. Supp 2d 359 (2001) and 146 F. Supp 2d 373 (2001).

The existing examples being the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, established under United Nations Security Council resolutions. On 12 September 2001, the UN Security Council adopted Resolution 1368, which unequivocally condemned the terrorist attacks of 11 September 2001.

Section 1(f) of the Order refers to ‘violations of the laws of war and other applicable laws’. Both the Former Yugoslavia Tribunal and the Rwanda Tribunal are empowered to prosecute war crimes: See Articles 2 and 3 of the Statute of the International Tribunal for the Former Yugoslavia and Article 4 of the Statute of the International Tribunal for Rwanda. Articles 1 and 8 of the Rome Statute of the International Criminal Court will also confer jurisdiction on the Court in respect of war crimes.

See Kirby M. ‘Australian Law — After September 11, 2001’, Speech To Law Council of Australia, 32nd Legal Convention, Canberra, 11 October 2001. The Commonwealth Attorney-General, the Hon. D Williams, has indicated that ASIO will be given new powers: ‘New Counter-Terrorism Measures’, Attorney-General's News Release, 2 October 2001; Interview with Hon. Williams D , ‘More powers for ASIO’, The World Today, ABC Radio, broadcast, 3 October 2001; ‘Anti-terror plan unveiled’, Age, 3 October 2001, p.1; and Interview with Hon. Williams D. , ‘A-G defends new anti-terrorism laws’, Lateline, ABC, 27 November 2001.