Academic journal article Duke Law Journal

Terrorism on Trial: The President's Constitutional Authority to Order the Prosecution of Suspected Terrorists by Military Commission

Academic journal article Duke Law Journal

Terrorism on Trial: The President's Constitutional Authority to Order the Prosecution of Suspected Terrorists by Military Commission

Article excerpt

INTRODUCTION

On November 13, 2001, President George W. Bush, in his capacity as commander in chief, promulgated a Military Order authorizing the trial of noncitizens suspected of complicity in the brutal attacks on September 11, 2001, before specially convened military commissions. (1) The Military Order of November 13 establishes that, unlike trials in federal district courts, judicial review of the commission proceedings will be strictly prohibited. (2) The commissions also differ considerably from the courts-martial provided under the Uniform Code of Military Justice (UCMJ). (3) Courts-martial are appealable on all issues of fact and law (4) and, furthermore, adhere to strict rules of evidence. (5) The commissions, on the other hand, only follow evidentiary guidelines established by the Secretary of Defense in his discretion. (6)

The Military Order creating these commissions reflects the Bush administration's trepidation about prosecuting suspected terrorists through the ordinary criminal justice system, which, it is feared, could lead to substantial delays and even acquittals based on legal technicalities. (7) President Bush's decision to convene military commissions is also predicated upon the belief that terrorist acts amount to acts of war, and that, accordingly, suspected terrorists should be treated as war criminals. (8) However, despite the president's repeated pronouncements that the September 11 attacks constituted violations of the law of war, thus empowering him to convene military commissions, (9) the November 13 Order has been heavily criticized as an unconstitutional expansion of executive authority with the potential for significant abuse. (10) By contrast, supporters of the commissions maintain that the Military Order is a valid exercise of the president's commander in chief power, and that the president's broad latitude to protect national security permits the Bush administration to proclaim war against terrorism. (11)

This Note analyzes the president's legal predicate for authorizing military commissions in response to the attacks on September 11. It concludes that, under Ex parte Quirin, (12) the president's Order is constitutional. The attacks of September 11 were so catastrophic in their purpose and effect as to constitute "hostile acts" in violation of the laws of war. (13) Because the attacks commenced an imperfect or "quasi war," the jus in bello was triggered, thus giving the president valid authority to convene the commissions to punish these acts as war crimes under Ex parte Quirin. (14) This Note maintains, however, that the Military Order is nevertheless an extralegal action because it is inconsistent with existing international law. The laws of war, a subset of the law of nations, apply only to state actors, not to independent terrorist organizations such as those believed to be responsible for the September 11 atrocities. (15) Despite the administration's attempt to effect a rapid change in customary international law so as to apply the laws of war to nonstate actors, (16) such a change, even if possible, cannot be made retroactive to the events of September 11. Thus, these commissions lack legal justification under international law.

Part I of this Note briefly summarizes the events of September 11 and then discusses the November 13 Military Order. Part II examines the historical precedent for convening military commissions to prosecute war crimes, and it also considers the various arguments supporting the president's Military Order. Part III describes the unique factual background and holding of Ex parte Quirin, and then analyzes the applicability of this opinion to the acts of September 11. Despite the clear differences between the Bush administration's military campaign and the World War II context in which Ex parte Quirin was decided, this Note concludes that this opinion provides a valid constitutional basis for the November 13 Military Order. …

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