The Constitutional Case Against Military Tribunals
Writing for the L.A. Times, Andrew Napolitano argues that military tribunals for suspected terrorists are unconstitutional.
Tellingly, and perhaps because we did not know at the time precisely who had planned the 9/11 attacks, Congress did not declare war. But the use of the word “war” persisted nonetheless. Even after he learned what countries had sponsored terrorism against us and our allies with governmental assistance, Bush did not seek a declaration of war against them.
The casual use of the word “war” has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.
Napolitano continues by pointing out that the Supreme Court has consistently found that only a declaration of war by the Congress allows the operation of a military tribunals against those accused of violating the laws of war.
Additionally, Napolitano points out that the Federal courts have been used quite often to try terrorist suspects, without any demonstrable bad effects.
That the target of the Cole attackers was military property manned by the Navy offers no constitutional reason for a military trial. In the 1960s, when Army draft offices and college ROTC facilities were attacked and bombed, those charged were quite properly tried in federal courts. And when Timothy McVeigh blew up a federal courthouse in Oklahoma City; and Omar Abdel Rahman attempted in 1993 to blow up the World Trade Center, which housed many federal offices; and when Zacarias Moussaoui was accused in the 9/11 attacks,all were tried in federal courts. The “American Taliban,” John Walker Lindh, and the notorious would-be shoe bomber, Richard Reid, were tried in federal courts. Even the “Ft. Dix Six,” five of whom were convicted in a plot to invade a U.S. Army post in New Jersey, were tried in federal court. And the sun still rose on the mornings after their convictions.
He concludes by pointing out the very real danger of allowing any President to have the power to detain and try anybody he feels like in a military tribunal.
Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a “war,” there would be no limit to the government’s ability to use the tools of war to achieve its ends. We have a “war” on drugs; can drug dealers be tried before military tribunals? We have a “war” on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared “war” on Fox News. Are Glenn Beck, Bill O’Reilly and I and my other colleagues in danger of losing our constitutional rights to a government hostile to our opinions?
I trust not. And my trust is based on the oath that everyone who works in the government takes to uphold the Constitution. But I am not naive. Only unflinching public fidelity to the Constitution will preserve the freedoms of us all.
Read the whole thing.
h/t Dodd Harris’ Facebook page
UPDATE (James Joyner): The courts have never truly settled the question as to whether such instruments as the Gulf of Tonkin Resolution (Vietnam) and the Authorization for Use of Military Force Against Iraq Resolution constitute a declaration of war. Massachusetts v. Laird sidestepped the issue nicely.
They have not, but I fail to see how they can be technically construed that way. And the AUMF passed after 9/11 would probably not past any kind of muster since its not directed at any specific nation.
Where in the constitution does it convey the protections given citizens to those captured in foreign lands, of foreign origin, who have plotted and committed acts of war on the United States. Bt the way, civil war is not between nations. War is a verb and does not require the involvement of nations to exist.
Article III, section 2, Amendment V, Amendment VI. Please note that due process is granted to all “persons” not just “citizens”.
Is a military tribunal not due process [a circular argument i suspect :)]?
Only in time of war, and only for specific things.
Alex, then how do we enforce that on the world? All persons, not doubt, was to mean all legal residents of the United States. After all, when the doc. was written, women did not have the same legal rights as men. The founders never intended to extend our hard won civil rights to the likes of KSM.
The same way we do now. Extradition treaties, etc. The applicaiton of the Constitution obviously only applies to those crimes in the jurisdiction of the United States.
No, but the right to a fair trial, etc. was extended to women at the time of framing. Those rights also applied to other non-citizens.
Yes, they did, which is why they used “person” and not “citizen.” This is also evident in the debates over Article III as recorded by James Madison.
Depends on what you mean by settled, the Courts have said it’s irrelevant in many ways. When Hamdi argued that the AUMF did not authorize his indefinite detention outside the criminal process, the SCOTUS held that based under longstanding law of war principles, the AUMF did. In other words, an authorization to use military force is an authorization to use war powers, constrained only by proper regulation of Congress or by the law of wars and treaties.
The other question that is integral to this unique situation is upon whom should war be declared?
That question is in need of some ruling. Whether it’s the application of the standards of the Geneva Convention to the “enemy combatants” or how to deal with those captured.
If it were a traditional war, no tribunals would be necessary as they would simply be held as POW’s with all the protections that offers until the end of hostilities. This “war” which has been declared on US and which we are still trying to figure out how to acknowledge it and even what to call it, has given rise to all kinds of legal problems which are… in the au fait word of our times… “Unprecedentd.”
While I agree that some precedent should be set, I completely and utterly disagree with trials under the American legal system, treating as crimes, the acts of war that an enemy has carried out against us.
KSM is an enemy combatant, not a criminal. Because he and his comrades have acted without the authority of a state behind them makes the situation new, but the situation is much closer to our traditional concept of war than it is to a collective mob hit. Again, they are not criminals, we should not be giving them those protections.
What’s the difference between KSM and Timothy McVeigh?
I’m not a lawyer, and therefore not competant to see through the fine points of the argument. That said, I find your thread pursuasive.
So then the argument becomes: why in the world did not Congress make military tribunals a viable prosecution alternative?
For the traditional US system, and the facts surrounding getting these guys, is ripe for getting these thugs off under that venue.
Its bizarre, and a travesty, all a political one.
The difference between KSM and McVeigh is that one is a citizen of the U.S. and one is not, right?
On the subject of this post I find it hard not to view 9/11 as an act of war regardless of whether war was declared (you appear to not subscribe to that logic, and you are entitled to that opinion). But the argument here seems to be just a technicality, useful for the administration’s justification of a political move (and I would like to emphasize how disgusting and disingenuous I find that move to be). Correct me if I am wrong but I recall Obama running on a platform of being a uniter and putting an end to partisan politics, when exactly should we brace ourselves for that?
As an aside, an overwhelming majority of Americans want KSM tried in a military tribunal not in New York. I am not saying that this has any bearing on your argument but I think it does mean that the case for having this trial in civilian court needs more than a technicality to convince people it is the right decision.
And I am not sure that people are fearful that the President is going to detain Americans and try them in tribunals at his leisure simply because KSM gets tried in one. The argument may again have technical merits, but I am suspect of the “real-life” implications that it presents. I really can’t imagine the current or a future President of the United States enacting this kind of power no matter what side of the political spectrum he/she falls on.
IF you refuse the differences in McVeigh, an American citizen, and KSM, then you miss the entire point.
To me the argument is not between military tribunals and civilian courts. The first question is whether or not civilian courts are appropriate for enemy combatants. It is not.
The Bush Administration, I believe, answered that question correctly. The debate should then be over what to do in this case. The Obama Administration has come to a different and incorrect decision which I believe will do great harm to our National Security. The precedent of trying enemy combatants, for acts of war in our civilian courts is beyond abhorrent. The choice the Obama Administration presents to us is a false one, and the route they’ve chosen will not turn out well.
If you argue, like Napolitano, that the tribunals are unconstitutional, so be it, let’s have the LEGAL debate and handle it properly. A civilian court of law is most certainly NOT the proper place for enemy combatants… those fighters who would be classified Prisoners of War if they were acting on behalf of a State.
The decision to try them only muddies the water, it sets bad precedent, it will not showcase the best of American justice, and it puts NYC in more danger than it otherwise is in. It’s simply unnecessary.
One ought to research the Lincoln assasination trials. Not one “conspirator” was in the military, nor had they conspired with the military, yet they were forced into a military tribunal, where, over six weeks, every defendent’s obections were routinely overruled and evey prosecutor’s objections were supported. The Secretary of the Army, (?) a friend of Lincoln’s, stated, at learning of his assasination, that he wanted them tried and in the ground before Lincoln. A rite of habeus corpus (?) to move to a civilian trial was filed by a federal judge but political pressure forced him to withdraw it.
The entire trial was a corruption of our constituion,though they probably got the right people nonetheless.
Yes, I don’t have any objection to a military tribunal per se for this type of action. I do have a problem with the Executive making the decisions absent Congress and I’m really tired of Congress deferring decisions to the Executive that properly belong to Congress.
I don’t think that the venue will affect the disposition of KSM, et al. The idea that criminals frequently get off on technicalities is something of a Hollywood myth–it’s actually pretty rare, as judges are more than willing to bend, stretch, and gut the law if they think a defendant is guilty. Additionally, most of the charges against them pre-date 9/11, so none of their treatment post-9/11 would have any bearing on those charges.
spago and oceanguy,
The law doesn’t make a distinction between citizens and non-citizens in these cases, in war time or in peace time.
Take away that distinction, and what’s the difference between Timothy McVeigh and KSM?
If being a citizen isn’t the important difference between McVeigh and KSM, then what is the difference between KSM and some Iraqi/Afghani dude sitting in his house planning where to place the next IED who gets blown up by a passing Predator…no trial, no due process, straight to execution (along with any of his friends/relatives that happen to be hanging out with him)? Seems to me the easiest thing to do would be to release KSM and call in an airstrike. I’m being snarky, but there is a serious question in there as to why he is deserving of all legal protection and his uncaptured cohorts are not.
The argument is still weak (see above…or below) and you ignore that KSM was not Mirandized which is grounds for a dismissal in civilian court. I honestly don’t understand how you can point out that the executive branch could theoretically apprehend U.S. citizens and try them in tribunals but not that this trial has the possibility of fundamentally changing the laws of our own civilian court. It is still a disgusting [and transparent…hey at least he is inadvertently getting to that campaign promise…in letter though not in spirit :(] political move.
And further I should ask did KSM even HAVE the right to remain silent…I don’t think there is much support that he did, much like there isn’t much support that he be tried in New York.
No, it’s not. Miranda only applies to the admissiblity of testimonial evidence given while in custody. In other words, if all the prosecutors have to go on is KSM’s confessions, then there could be a dismissal. However, given that KSM was indicted in 1996 for terrorism charges and given that the bulk of the prosecution’s case is almost certainly going to be based on the files found in his home that form the basis of our intelligence against al-Qaeda, Miranda isn’t going to stop the prosecution.
The prosecution is almost certain to not use KSM’s confessions, as that would definitively prompt the defense to bring up evidence that KSM was tortured. No prosecutor is going to be stupid enough to try it.
In traditional Anglo-American jurisprudence, a defendant is tried in the jurisdiction of the crime of which he is accused.
Even if I grant your assumption that KSM et al’s acts are similar and comparable to McVeigh’s I’m afraid you’re wrong about there being no difference in the law between them.
McVeigh, as a citizen, is/was a traitor. As a non-citizen enemy, KSM is an enemy combatant. I much prefer in this case to look at the forest and not the trees studied in case law.
The situation we are in is unique… non-State actors are at war with us. We haven’t figured out how to handle that in the framework of our law. To make the decision to try those men in our civilian justice system, with all the rights and privileges that come with it, is a monumental mistake.
It will fundamentally alter the way our men and women in uniform, and our intelligence services operate against this enemy. Our legal system as it has evolved to try criminals, is not a fitting place to try people who are more properly kept as Prisoners of War.
The error of the decision and your defense of it is the refusal to acknowledge that KSM is an enemy of the United States, and who has engaged in war against us. Certainly he doesn’t see his or their acts as crimes and neither should we.
Had KSM been acting on behalf of Afghanistan or any other state, how would we handle him? How would you justify trying him in our criminal justice system?
The men and women we have educated and trained in the Profession of Arms don’t deserve the burden this decision will place on them as this decision brings a myriad of unintended consequences from the precedent being set.
Our enemy doesn’t deserve an advocate to prove he’s not our enemy… because that is the REAL issue at stake. Were they acts of war or are they simple crimes? Didn’t we learn the lesson of the first WTC bombing that treating it as a crime didn’t work?
There are huge differences between McVeigh and KSM, and the fact that many, like you, refuse to acknowledge it has already given our enemy an advantage.
Your assumptions are off. I fear you, and those others who think it’s right to try them, that you are studying the trees and neglecting the forest.
He wasn’t charged with treason.
Absent a declaration of war against a foreign power, there is no legal justification for making this claim.
It’s not unique. Not even in this nation’s history. There is a legal framework for dealing with such people. Bush simply chose to ignore it.
Do you have any evidence to support this assertion? Moreover, do you have any evidence to support that such changes would be negative?
If the Congress were to choose to treat al-Qaeda members as prisoners of war and established a legal framework to do so, I would have no problem with that. But they didn’t, and the Bush Administration most certainly did not treat them so, either.
So what? There is a legal framework for dealing with such people. All of the original WTC bombing conspirators but one were tried in civilian court. All who were tried are dead or in jail and none have committed any acts of terrorism.
Lots of criminals don’t consider that they are committing crimes. What is the relevance of that?
That depends. Prior to World War II, there were 33 Nazi spies in the United States who tried to commit acts of terrorism against the United States. They were tried in civilian courts and sentenced. After the war started, Nazi spies were tried by military tribunal. No Nazi spies were detained indefinitely without hearing, nor were any denied access to counsel. Are you saying al-Qaeda is more dangerous than Nazi Germany was? Please.
It doesn’t set any new precedents at all.
How do you know they’re the enemy unless it’s proven?
Absent a declaration of war or an Act of Congress providing a legal framework for a military tribunal, the law demands that they be tried in the regular criminal justice system.
How so? Are the WTC conspirators running around free now, causing terrorist acts?
What advantage? Please cite sources if available.
I’m sorry that I believe in the rule of law and upholding the Constitution. But I happen to think that those are important values.
Alex, who do we declare war against? This is not a case that should be analyzed through existing case law. It is a situation of a collection of loosely tied non-state actors, having declared war on US.
Your argument that it isn’t war because there has been no Congressional Declaration of war may be an interesting academic exercise, but it’s silly, it’s arrogant, and it doesn’t work.
Treating the first WTC bombing as a crime gave rise to 9/11. How/Why? Because we treated it as a crime perpetrated by a handful of conspirators… the enemy looked at it as the act of war it was. We patted ourselves on the back for the fair trials we gave a few of them while their comrades in arms, their brothers in jihad, planned their next attack.
The problem I have will you argument is not legal. As I said, case law is irrelevant, or should be. We cannot fight or win a war in a court room. As long as we keep treating it as a criminal matter we increase the threat.
Just because it’s difficult to identify the enemy, doesn’t mean we are not at war. You are happy being hamstrung on a legal technicality… no Congressional declaration… while ignoring the fact that a state of war does, in fact, exist. To you war can be a one way proposition, I don’t see it that way.
You see a wrong and believe our existing system is up to the challenge of handling it. I understand your position, and absent the state of war that is reality, it would be a reasonable position… the right position. But a state of war DOES exist, and the problem is that we continue to ignore it.
Waging war through the courts is a bad,bad idea. It’s a travesty. It will do no good in the overall effort, and will wind up fundamentally changing and damaging our ability to wage this type of war.
My solution would not involve a trial nor a military tribunal. I would declare war, and hold them all as Prisoners of War until the cessation of hostilities. I’d put much more effort into identifying the enemy and figuring out how to wage this sort of unconventional war within the frame of our Constitution. By treating that as too difficult, and not politically correct, we increase our peril.
The problem will only get worse as the enemy studies our laws and our reactions and continues to attack. Yes, I see Dr. Hasan as another problem in this war. I see his trial as even more important than the KSM trial as a piece of the overall war puzzle.
Again, the problem is how do we fight against such an enemy? One that is very difficult to identify, difficult to label, and extremely difficult to defend against. One way we can certainly HURT ourselves is by developing a history of case law that ignores the war and treats the warriors as criminals.
Just because a bunch of religious fanatics say they’re at war doesn’t mean that war exists as a serious proposition. Are they dangerous? Yes. Criminals? Yes. But they pose very little real threat to the United States in the same way that another nation does. I mean, there’s no way that al-Qaeda could, say, conquer New York City and hold it.
Adhereing to the law and the Constitution is an “interesting academic exercise”?
What evidence do you have that suggests that treating the WTC conspirators as prisoners of war would have prevented 9/11? Anything?
What evidence do you have showing this?
Why? What’s your empirical support?
That means that under the law, there would at least have to be a hearing held to determine their status, which includes access to counsel for that purpose.
I thought that adhering to the Constitution was just an academic exercise?
In what way?
Dr. Hasan is an American citizen who did not have any ties to any terrorist organization. Are you now claiming that the United States can be in a state of war with individual citizens? That the government has the power to declare a citizen a “prisoner of war” and hold them until “cessation of hostilities”?
Once again I ask, what evidence is there that trying terrorist as criminals is harmful?
I am saying, yes we are at war with an enemy that is difficult to identify… impossible to identify under the current environment.
I trying terrorists harmful? Tough question to quantify as a singular choice, it’s certainly harmful to the war effort, which you again brush off as posing less of a threat than a real nation.
Can Al Queda attack and hold NYC? No. Is Al Queda the sole threat? Again, no. Is the threat limited to murder, and bombing and other “criminal” activity? No it isn’t. That may be the issue at the heart of our disagreement.
Radical/Militant/Violent/Fascist Islam is a movement whose followers make difficult foes to counter… traditional warfare is inadequate, and our courts are inadequate. How numerous is the enemy? Depends on how they are defined, but even modest estimates put the number between 10 and 20 million and growing.
I’m afraid we’re at an impasse. In your understanding of the situation you are right. I think you’re being naive about the nature of the struggle and the nature and threat that this enemy presents.
Maybe I’ve taken the point of your post in an inappropriate direction, as I also lean toward the position that the current construct of military tribunals is imperfect.
The academic exercise I see you engaged in is applying existing case law to a situation that has no business in our court system… declaring war will change the academic game for you, but as you point out, upon whom do we declare? You continue to want to debate… or question… as a lawyer, when the issue deserves more evidence of thought than you are willing to offer. I see this clash between Islam and the world as the great issue of our time. I want to understand it, I want to know how to sort the enemy from the rest, and I want to figure out how to counter their assault and expand western liberal democracy.
We obviously disagree on the nature of the enemy… I’m an alarmist, you’re naive. We’re stuck on that.
Thanks for the discourse. Ciao.
How can we be at war with an unidentifiable opponent? If we can’t identify them, we can’t classify them under the law. Otherwise, you risk granting the government the arbitrary power to detain whoever they please for an indefinite duration.
Once again, what is your evidence that trying terrorists in civilian courts harms our ability to prevent terrorist attacks against the United States?
Can any non-state actors threatent the territorial or institutional integrity of the United States? No.
What evidence do you have that the threat is greater?
That’s nuts. Are you really claiming between 10 – 20 million people are ready to commit acts of terrorist violence against the United States? What’s your evidence for that. Even in Afghanistan, there are only 10 thousand Taliban fighters.
If the Congress wants to set up military tribunals for those non-state actors who are captured by the military in the act, I have no problem with that as long as they conform to the Constitution. But Congress has declined to do so, so the only legal recourse is trial in civilian court.
I think that there is no evidence to suggest that radical Islamists pose any substantial military threat to the United States. I have asked you repeatedly to provide some and you have declined to do so.
I fail to see how actually requiring evidence that a threat exists is naive. But hey, I suppose an impasse is reached because I personally think that it’s silly to jump at shadows and tear down the rule of law because we’re scared of some primitive savages.