No American
Throwing the book at the “American Taliban.”

January 23, 2001 8:45 a.m.

he opponents of military commissions have argued that John Walker is a U.S. citizen, and therefore President Bush's military order doesn't apply to him. This point has even been repeated by Attorney General John Ashcroft and others who surely must know that Walker's U.S. citizenship can be challenged.

And Monday night on his MSNBC debut, Alan Keyes made the point that the separation-of-powers doctrine set forth in the Constitution is violated when the executive branch assumes judicial functions born from a war without an apparent end, such as the war on terrorism. Military commissions are objectionable, therefore, as they blur the lines between executive and judicial functions.

I'll respond seriatim. As to Attorney General Ashcroft's contention, the U.S. government had every reason to challenge Walker's citizenship, and it should have. Title 8, Section 1481 (a)(3)(A) of the United States Code states:

A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality — entering into, or serving in, the armed forces of a foreign state if such armed forces are engaged in hostilities against the United States ...

If Walker had been charged with renouncing his U.S. citizenship, Section 1481(b) provides, in relevant part:

... Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence that the act or acts committed or performed were not done voluntarily.

The government's criminal complaint spells out in exquisite detail not only facts demonstrating Walker's conspiracy to kill Americans abroad, but the case for his renunciation of his citizenship. In fact, the same body of evidence the government has assembled to prove Walker's guilt would have demonstrated his renunciation.

Of course, Walker has a defense, as mentioned above. For the government to concede that Walker remains a citizen, however, without even raising the issue in court, concedes too much. The man is a traitor who took up arms against Americans. If Walker wanted to mount a legal fight to retain his citizenship, and explain to a court and the public why he never intended to relinquish it, that would be a fight worth having and an argument worth hearing.

The government's decision to avoid this confrontation cannot be explained persuasively on legal grounds. It is, however, perfectly in line with the government's weakening resolve to use military commissions, so that if Walker is said to be a U.S. citizen, he's not subject to justice dispensed by military commission.

As for the argument by Mr. Keyes that the Constitution's separation-of-powers doctrine should preclude generally the use of military commissions, in this there can be no doubt. However, while the Constitution creates three separate branches of government, Article I, Section 8 empowers Congress "To constitute tribunals inferior to the Supreme Court."

It is under this constitutional authority that Congress crafted the Uniform Code of Military Justice, which is not part of the usual civilian-court system. Presidents have used the statutory authority set forth by Congress as the basis for establishing military commissions. If Congress concludes that the president has abused or misused this authority, it has the power to change the law. Thus far, it has not.

Article I, Section 8 also empowers Congress "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." For purposes of interpreting the Constitution, it is perfectly legitimate to equate yesterday's pirates with today's foreign terrorists.

Military commissions have been upheld as constitutional by earlier Supreme Courts. And despite the president's military order, which does not provide for judicial review by the Supreme Court of decisions made by his military commissions, there is no doubt that the Supreme Court retains the authority to review decisions by these inferior courts.