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Historical Examples of Remand to Military Detention After Commission Prosecution

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Tuesday, October 25, 2011 at 10:23 AM

Yesterday I asked whether there are any historical examples in which (i) a military commission prosecution occurred during an armed conflict rather than afterwards, (ii) the defendant was acquitted, and (iii) the defendant was nonetheless remanded back to military custody to be detained under color of the law of war.  I’m happy to hear from others, but in the meantime here is the most pertinent response I’ve received.  It comes from Haridimos V. Thravalos, a graduate of Cornell University and Villanova University School of Law who follows national security law in general and military commissions in particular.  Haridimos writes:

I was able to locate three historical examples roughly paralleling al-Nashiri’s hypothetical scenario of a mid-conflict prosecution resulting in acquittal and continued non-criminal custody.  The first example occurred during the Spanish-American War; the second and third examples occurred during the Philippine Insurrection.

In all three examples, the defendant was convicted by military commission but the commanding general disapproved that conviction, which under then-prevailing Army practice was tantamount to an acquittal.  After this de facto acquittal, the commanding general ordered that each defendant be detained as a “prisoner of war.”

In the first example, Private Rafael Albert, a Spanish Army prisoner of war, was convicted of murder in violation of the law of war (for the post-capture killing of an unnamed man while Albert was in custody as a prisoner of war).  The commanding general disapproved Albert’s conviction and ordered that he “be released from confinement under this sentence” but that he be retained “in custody as a prisoner of war.”  See Maj. Gen. E. S. Otis’s General Orders, No. 26, Headquarters Department of the Pacific and Eighth Army Corps, Manila, Philippine Islands, May 10, 1899 (disapproving conviction of Priv. Rafael Albert, Spanish Army (Spanish Army prisoner of war charged with murder in violation of law of war (of unnamed man) in Manila, Philippine Islands during Sept. 1898 before military commission convened Oct. 18, 1898 at Manila, Philippine Islands)) (“Private Rafael Albert will be released from confinement under this sentence, but will remain in custody as a prisoner of war.”) (emphasis in original).  A state of war existed between the United States and Spain between Apr. 21, 1898 and Apr. 11, 1899.  The trial began Oct. 18, 1898.

In the second example, Corporal Roman Laesamana of the Philippine Insurgent Army was convicted of being a spy.  The commanding general disapproved Laesamana’s conviction but ordered that he “be detained by the commanding officer at Batangas until further orders, as a prisoner of war.”  See Maj. Gen. Arthur MacArthur’s General Orders, No. 17, Headquarters Division of the Philippines, Manila, Philippine Islands, May 10, 1900 (disapproving conviction of Cpl. Roman Laesamana, Philippine Insurgent Army (Filipino insurgent charged with being spy in Batangas City, Batangas Province, Luzon, Philippine Islands during Mar. 1900 before military commission convened Apr. 9, 1900 at Batangas City, Batangas Province, Luzon, Philippine Islands) but directing that defendant be detained as prisoner of war) (“In this view the findings and sentence are disapproved.  The accused will be detained by the commanding officer at Batangas until further orders, as a prisoner of war.”).  A state of war existed between the United States and the Philippine Insurgents between Feb. 4, 1899 and July 4, 1902.  The trial began Apr. 9, 1900.

In the third example, First Lieutenant Pedro A. Cruz of the Philippine Insurgent Army was convicted of being a spy.  The commanding general disapproved Cruz’s conviction but ordered that he “be detained until further orders as a prisoner of war.”  See Maj. Gen. Arthur MacArthur’s General Orders, No. 50, Headquarters Division of the Philippines, Manila, Philippine Islands, July 10, 1900 (disapproving conviction of First Lieut. Pedro A. Cruz, Philippine Insurgent Army (Filipino insurgent charged with “lurking about a post occupied by the Army of the United States and acting as a spy in time of insurrection against the United States, in violation of section 1343, R. S.” in San Fernando de la Union, Luzon, Philippine Islands during Mar. 1900 before military commission convened Apr. 27, 1900 at San Fernando de la Union, Luzon, Philippine Islands) but directing that defendant be detained as prisoner of war) (“In this view the findings and sentence are disapproved.  The accused will be detained until further orders as a prisoner of war.”).  A state of war existed between the United States and the Philippine Insurgents between Feb. 4, 1899 and July 4, 1902.  The trial began Apr. 27, 1900.

Of the three examples, the Albert case suggests most strongly that the power to hold a detainee in continued non-criminal custody after an acquittal (or de facto acquittal) did exist during the Spanish-American War because the commanding general specifically ordered that Albert “be released from confinement under this sentence” but that he be retained “in custody as a prisoner of war.”  The Laesamana and Cruz cases are less persuasive of this purported power, however, because it is not clear from the record if their continued non-criminal custody was temporary or permanent.  In my review of the Philippine Insurrection-era cases at the National Archives, defendants acquitted by military commission were almost always released from custody.

As a general matter, under Part V of Justice Stevens’ (plurality) opinion in Hamdan, all three military commissions might be deemed to be “hybrid” military commissions–meaning that the commissions acted simultaneously as a military government commission and a law-of-war commission.  According to the plurality, this fact could lessen (or negate) their value as precedent.  The better view, however, is that all three of the above military commissions were acting purely as law-of-war commissions because the charges preferred were (1) murder committed while being a prisoner of war and (2) spying.

 

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