War and the Constitution: Bush's Military Tribunals Haven't Got a Legal Leg to Stand On

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THE MEDIA ARE AWASH IN DISINFORMATION ABOUT military tribunals. Since November 13, when President George W. Bush issued his controversial executive order mandating the use of military commissions to prosecute suspected terrorists, one far-feched claim of law has followed another. The president's lawyers have every right to put the best possible light on their plans for sidestepping the criminal courts. My problem is with the academic lawyers whose offhand opinions fill the op-ed pages and the ears of Congress. Their din reached its climax when two important legal scholars--Laurence Tribe of Harvard and Cass Sunstein of the University of Chicago--testified as "liberals" before the Senate Judiciary Committee that Bush's tribunals would be compatible with the Constitution. Of course, everybody these days is responding under pressure, but the law professors have been giving "shooting from the hip" a bad name.

Any serious examination of the sources--statutes and Supreme Court cases--should lead a fair-minded scholar to the opposite conclusion: There is no law available to support the proposed Bush tribunals. Leave aside whether the tribunals would be good or bad, kangaroo courts or simply streamlined procedure; the president has no authority to create them.

Tribe argued recently in The New Republic that "in wartime, `due process of law,' both linguistically and historically, permits trying unlawful combatants for violation of the laws of war, without a jury." This single sentence captures many of the mistakes that run, like viruses, through the debate in the press. But let us begin with the fundamental question of whether the

Constitution, as Tribe suggests, is different in wartime versus peacetime. In the words of the Supreme Court's 1866 ruling Ex parte Milligan, the leading precedent on this issue: "[T]he Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances." When the Sixth Amendment mandates that in "all criminal prosecutions" certain rights should apply, including the right to a jury trial, the framers mean what they say. And the Supreme Court has understood the injunction. It is undisputed law that if the civilian courts are open and functioning, the armed forces cannot convene a military commission or tribunal to try offenses that fall within the civilian courts' jurisdiction.

True, Chief Justice William H. Rehnquist wrote in his 1998 book All the Laws but One that in the time of a declared war the government has greater authority to infringe civil liberties. For example, the government can deport enemy aliens. But these infrigments on the status of enemy aliens do not affect their right to be tried in civilian court for committing a crime in the United States. The fact of "wartime" does not change the meaning or scope of due process--either linguistically or historically.

THE SECOND BASIC POINT THAT WE SHOULD CLARIFY IN order to think straight about criminal justice a la Bush and Attorney General John Ashcroft concerns "unlawful combatants"--the term that Tribe uses to explain the category of people that can be tried by simplified procedures for "violation of the laws of war." This phrase, "unlawful combatant," appears all over the place as though it could be the talisman that saves Bush's tribunals.

The Supreme Court first used the term in 1942 in Ex parte Quirin to solve a particular problem that arose when eight German spies landed in civilian clothes on the beaches of Long island. The FBI arrested them before they executed any of their planned acts of sabotage. President Franklin D. Roosevelt was resolved to prosecute them for something, and it turned out that there was a suitable law on the books--a provision of the U.S. Code prohibiting spying in wartime near or around American military installations. That statute required trial by either court-martial or military tribunal and imposed an automatic penalty of death. …