Terrorism, Military Tribunals and the Constitution

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Terrorism, Military Tribunals and the Constitution

On Nov. 13, 2001, President George W. Bush signed an executive order, passed overwhelmingly by the House and Senate the following day, authorizing "action against those nations, organizations or persons" who, according to the president, "planned, authorized, committed or aided" the Sept. 11 terrorist attacks. The constitutionality of Bush's executive order immediately was debated, with some asking whether it upholds Americans' rights or instead undermines the very rights the Constitution seeks to protect.

The Cato Institute in Washington, DC hosted a Dec. 6 policy forum to discuss the issue. The participants included Michael Nardotti, Joseph R. Barnes, Lee Casey and Timothy Lynch.

Nardotti, a retired U.S. Army major general and former judge advocate general, argued in support of the executive order. The current circumstances, he maintained, render federal courts and their criminal procedures inadequate and warrant the creation of military tribunals.

Nardotti cited as precedent the post-World War II military courts which conducted the Nuremberg trials. The army, under the restrictions and guidance of articles of war, he said, gave the president the authority to modify the rules.

"There has been a dramatic evolution of military justice over the past 50 years," Nardotti said. The manner in which military courts have operated throughout this time will have some bearing upon how today's military tribunals will function, he concluded.

Barnes, a retired Army brigadier general and former assistant judge advocate general, shared Nardotti's view of the constitutionality of Bush's executive order. Looking beyond the black-and-white argument of whether military tribunals are constitutional or unconstitutional, however, he proceded to probe the inevitable "area of gray."

Nardotti posed the question of whether the U.S. is at war as a benchmark for determining the constitutionality of military tribunals, and concluded that they are constitutional, as did Barnes. The latter, however, expanded upon the question to determine the constitutionality of military tribunals as it relates to U.S. foreign policy, and thus the international community.

While agreeing that the country is at war, Barnes proceeded to define the type of military engagement, in light of both provocation and response. In regard to provocation, "It is not clear that the Sept. 11 attacks fall into the category of a war crime," Barnes said. "In my view, they do not."

Although Barnes does not regard the terrorists as war criminals, he does not consider them ordinary criminals either. "They don't fit neatly into either category," he said.

The gray area of the question of whether we are at war, then, is framed by criminality on one side, and war on the other. Barnes sees America fluctuating between these two poles.

"In my opinion," he explained, "we have been and are in a state of international armed conflict. Some international bodies have taken that view, either implicitly or explicitly," he noted. Recent Security Council resolutions and NATO's evocation of Article V attest to the international community's recognition of the current state of armed conflict. More importantly, they reveal that the international community shares a sense of attack as well as of the necessary response, he said.

For this reason, Barnes is in favor of international military tribunals rather than domestic military tribunals. He suggested that the president, in his capacity as commander-in-chief, work in collaboration with foreign policy strategists, thus making the war against terrorism more than solely a U.S. war, but an international war.

Correspondingly, relying on international military tribunals would indicate that it is "not just the U.S. versus al-Qaeda, but the international community versus al-Qaeda," Barnes pointed out. …