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first cabal of al Qaeda prisoners could have been brought here for
trial. Instead, they were taken to Guantanamo, where they'll probably
be tried by military tribunal — outside the United States.
Meanwhile, Zacarias Moussaoui, the Moroccan would-be pilot, also
qualified for trial by military tribunal — perhaps in Minnesota,
where he was arrested. Instead, he's making his case before a civilian
jury in a Virginia federal court. Then there's Richard Reid, the
British citizen of shoe-bomb fame. He too could have been tried
by military tribunal — maybe in Massachusetts, where his American
Airlines plane landed. Instead, he's been indicted by a federal
court there.
That's all
good news, which responds to criticism leveled by civil libertarians.
Plain and simple, military tribunals have no business on U.S. soil.
So far, President Bush seems to agree. He should say so, unequivocally
and soon. Here's why.
The Fifth and
Sixth Amendments to the U.S. Constitution ensure due process and
a speedy and public jury trial. Those protections apply to "persons,"
not just U.S. citizens. No responsible authority argues otherwise.
When the Framers wanted to say citizens, they said citizens. And
when they said persons, that's what they meant. This past term,
in Zadvydas v. Davis, the Supreme Court reaffirmed
the general rule that immigrants — even those here illegally
or temporarily — are entitled to the same due process as citizens.
So here is
the threshold question for anyone who wants to use military tribunals
in the United States to prosecute noncitizens suspected of international
terrorism: Are the Fifth and Sixth Amendments available to all defendants,
including international terrorists? Or are there special rules for
terrorists? Let's assume, first, that the Bill of Rights applies
across the board. If so, the Bush military order on tribunals is
unconstitutional. To the extent that the order permits, as it does,
prosecution of noncitizens who are arrested or tried here, or who
reside here, it denies those persons their constitutionally guaranteed
rights. And that's no small matter. There are 18 million noncitizens
in the United States; the vast majority of them are here legally.
That's not
to say tribunals are improper for prosecuting noncitizens apprehended
overseas. Those persons are not entitled to constitutional protection,
and tribunals are a legitimate venue to try, convict, and punish
them. But for persons residing in the United States, constitutional
rights cannot be so casually discarded. And when Attorney General
Ashcroft suggests that resident aliens can be treated differently,
he is doing what he accuses his critics of doing — "pit[ting]
Americans against immigrants, and citizens against non-citizens."
That was not an off-the-cuff remark by Ashcroft; it was from his
prepared testimony to Congress — the same testimony in which
he referred to "phantoms of lost liberty," as if denied
Fifth and Sixth Amendment rights were not real lost liberty.
Yes, the Supreme
Court said in 1942 that it was okay to use military tribunals in
the United States, even to try citizens, if they are suspected of
being unlawful combatants. That was the holding in Ex parte Quirin.
Eight Nazi saboteurs, at least one of whom was a U.S. citizen, were
captured in the United States, and were tried and convicted here
before a tribunal. Six of the eight were executed. Before their
execution, the Supreme Court affirmed that violations of the laws
of war by unlawful combatants are not the kind of offenses, rooted
in the common law, that are covered by the Fifth and Sixth Amendments.
Instead, the international laws of war apply and military tribunals
have jurisdiction.
Some have argued
that Quirin was wrongly decided. After all, nothing in the
text of the Constitution suggests a separate category of offenses
to which the Bill of Rights does not apply. Indeed, the Fifth Amendment
accords special treatment to cases involving our armed-forces personnel
in time of war. But it says nothing about enemy belligerents residing
in the U.S. The Quirin Court explained that alien spies had
been tried by military tribunal, both before and shortly after ratification
of the Fifth and Sixth Amendments. Yet in 1866 (Ex parte Milligan),
the Court ruled that tribunals could be used only if the civil courts
were "actually closed." Unlike Milligan, which
involved a civilian defendant, Quirin involved unlawful combatants,
but that distinction is also nowhere to be found in the Constitution.
To be sure,
emergency circumstances sometimes require emergency solutions. Still,
the Constitution applies in both peace and war. The Framers contemplated
emergencies: Article I, section 9 allows suspension of habeas corpus
in cases of rebellion or invasion. Article I, section 10 allows
a state, without the consent of Congress, to engage in war if it's
"invaded, or in such imminent Danger as will not admit of delay."
The Framers could have provided for other emergency powers; but
they did not.
No matter,
let's assume that Quirin is correct. That means unlawful
combatants, including those captured here, may be tried by a military
tribunal under certain conditions. What are those conditions? And
do they comport with the Bush military order? First, says Quirin,
a presidential proclamation authorizing military tribunals "does
not bar accused persons from access to the civil courts for the
purpose of determining the applicability of the Proclamation to
the particular case." Compare the words of the Bush military
order: A detainee "shall not be privileged to seek any remedy
… directly or indirectly … in any court of the United
States."
Not to worry,
says the administration. Individuals tried within the United States
can exercise their right of habeas corpus to challenge, in court,
the threshold question of whether they are persons subject to a
military tribunal. Maybe so. But that's not the only purpose of
a habeas petition. The Quirin Court also held that a presidential
order, even one which, like the Bush order, expressly denies a judicial
remedy, cannot prevent defendants from contending "that the
Constitution and laws of the United States forbid their trial by
military commission." That's not merely a question of jurisdiction.
It is a question of constitutional authority and executive power.
The Bush military order, in denying a civil judicial remedy, has
violated the Quirin mandate.
Second, says
Quirin, Congress formally declared war against Germany. And
articles of war "explicitly provided … that military tribunals
shall have jurisdiction to try offenses against the law of war."
By contrast, the entire Bush scheme was concocted without congressional
input. President Bush invoked his authority as commander-in-chief
to establish the new tribunals. But that authority, at best, is
shared with the legislative branch. Congress, not the president,
is empowered by Article I, section 8 to "constitute Tribunals
inferior to the supreme Court," "define and punish …
Offenses against the Law of Nations," "make Rules concerning
Captures on Land and Water," and "make Rules for the Government
and Regulation of the land and naval Forces."
The administration
responds that Congress has spoken. On September 14, the Senate and
House overwhelmingly passed a resolution authorizing action against
persons that "planned, authorized, committed or aided"
the terrorist attacks of September 11. True enough, but the resolution
had nothing to say about tribunals. It sanctioned the use of force,
not the procedures for convicting enemy belligerents. Furthermore,
the September 14 resolution, unlike the Bush order, relates only
to persons involved in the acts of September 11. The reach of the
Bush order — i.e., anyone involved with international terrorism
— cannot be squared with Congress' resolution.
Despite all
that, let's make another heroic assumption. Let's say we do not
need a formal declaration, or even express legislative authority,
for military tribunals. All that matters is objective reality: We
are in a state of war. Congress's resolution is good enough. Ergo,
according to Quirin, military tribunals may try offenses
against the law of war by unlawful combatants, even here in the
United States. But who are those unlawful combatants? That term
of art describes enemy belligerents who do not have uniforms or
other insignia of a command structure, do not openly possess weapons,
and will not themselves commit to abide by the law of war. Terrorist
groups like al Qaeda surely qualify. The Taliban may not.
The scope of
the Bush military order is substantially more elastic. Bush tribunals
apply not only to al Qaeda but to any noncitizen that Bush has "reason
to believe" has "engaged in, aided or abetted, or conspired
to commit, acts of international terrorism, or acts in preparation
therefor" — or anyone who has knowingly harbored such
a person. We do not know how direct the involvement with terrorists
must be, where it occurred, when it occurred, or against whom it
occurred. We do not even have a definition of international terrorism.
Conceivably, a drug dealer who unwittingly supplied a terrorist
could be prosecuted by a military tribunal.
Here's the
argument in a nutshell. If the Bill of Rights applies to unlawful
combatants in the United States, the Bush military order is unconstitutional.
If the law of war is in force, then military tribunals in the United
States must be, first, subject to civil judicial review; second,
authorized by Congress; and third, limited to prosecuting unlawful
combatants. In any event, the order as it now stands is illegitimate,
and those of us who say so are not, in the attorney general's unfortunate
and offensive words, "giving ammunition to America's enemies,"
"aiding terrorists," or "eroding our national unity."
Instead, we are upholding the Constitution; securing the values
that sustain a free society; and, at the same time, preserving for
the president the option of using military tribunals outside of
the United States — where they belong.
This article
is an expanded version of the author's remarks before a Federalist
Society conference on "The Use of Military Commissions,"
December 19, 2001, Washington, D.C.
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