On November 13, 2001, President George W. Bush authorized a military tribunal to try whoever provided assistance for the terrorist attacks of September 11 against New York City and Washington, DC. Vice President Dick Cheney supported Bush's initiative by arguing that terrorists, because they are not lawful combatants, "don't deserve to be treated as a prisoner of war." He spoke favorably of the treatment of German saboteurs in 1942, who were "executed in relatively rapid order" (Bumiller and Myers 2001, B6). The concept of a military tribunal had been developed by William P. Barr, former attorney general in the first Bush administration. Barr's previous position with the Justice Department, as head of the Office of Legal Counsel (OLC), put him in the same space occupied by the 1942 military tribunal. He said that the idea of a tribunal came to him as one way to try the men charged with blowing up the Pan Am jetliner over Lockerbie, Scotland (ibid.). In an op-ed piece with Andrew G. McBride, Barr referred to the Supreme Court's decision in Ex parte Quirin (1942), upholding the military tribunal for the German saboteurs, as the "most apt precedent" (Barr and McBride 2001, B7).
A closer look at the 1942 experience rebuts the notion that the Nazi saboteur case is a reliable or attractive precedent. The Roosevelt administration was so torn by its handling of the case that it adopted an entirely different procedure in 1945 to deal with two other German spies. In general, efforts in time of war to replace civilian courts with military tribunals have produced serious deficiencies in law, practice, and institutional checks. With the November 13 order on military tribunals, the Bush administration has attempted to augment presidential power at the cost of legislative and judicial controls.
Military tribunals have been used for centuries to try individuals of offenses when civil courts are either not open or considered not suitable. Tribunals are most justified when civil courts are unavailable or not functioning, and least justified when they are. In the case of the eight Germans tried in 1942, they were charged with four crimes: one against the "law of war," two against the Articles of War (81st and 82nd), and one involving conspiracy. The prosecutors thus combined a mix of offenses that were non-statutory (law of war) and statutory (Articles of War).
The distinction here is fundamental. In federal law, the creation of criminal offenses is reserved to the legislative branch, not to the president. The Constitution vests in Congress the power to "constitute Tribunals inferior to the supreme Court" and to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations" (Art. I, [sections] 8, cl. 9 & 10). By enacting the Articles of War, Congress defined not only the procedures but also the punishments for the field of military law. Charging individuals with violations of the "law of war" shifts the balance of power from Congress to the executive.
In enacting Articles of War, Congress depended on British precedents dating back to the 1650s. Parliament amended those Articles in 1749 and again in 1757. The purpose of the Articles was to set down penalties for various acts by soldiers and sailors and to establish procedures for courts-martial. Punishments were meted out for failure to obey orders, mutinous practices, and other conduct that required discipline. When George Washington served as an officer in the American colonies under British rule, it was his duty to have these Articles of War read to recruits. He was also responsible for supervising general courts-martial and approving the sentences that were handed down (Fisher 2003, 59-60).
In 1775, with the American colonies preparing to declare independence from England, the Continental Congress adopted rules and regulations for the military, drawing principles of warfare from the British Articles of War (Journals of the Continental Congress, 2: 111-23). …