Indefensible
opinionjournal.com
The case against military tribunals.
BY ROBERT A. LEVY
"President Bush has declared that an "extraordinary emergency" allows him to order military trials of non-U.S. citizens--even if they are arrested here, are tried here and reside here legally. The president need only assert that he has "reason to believe" the noncitizen is involved in international terrorism. We all want to fight terrorism, but shredding the Constitution--which applies to all "persons," not just citizens--isn't the way to do it.
Under the recently issued executive order, the defense secretary sets all the rules for these tribunals, including how many members will be on the panel, what qualifications they must meet, what standard of proof will be needed to convict, and what type of evidence can be considered. There will be no judicial review. Only the president or defense secretary will have authority to overturn a decision. Astonishingly, the only rule that Mr. Bush's executive order lays out with specificity is that the accused can be convicted and sentenced--to life in prison or death--if two-thirds of the panel agree.
Even military courts, under the Uniform Code of Military Justice, require unanimity in capital cases and provide for several stages of appellate review. They also preserve many of our Fifth Amendment rights, like protection against double jeopardy and self-incrimination, and the right to Miranda-type warnings. Unlike conventional military courts, the new Bush tribunals could unleash an ugly and dangerous breed of justice, lacking the due process guarantees that distinguish us from the barbarians we are fighting.
The problems grow the more closely one examines the language of Mr. Bush's executive order. For example, the secretary of defense can "transfer to a governmental authority control of any individual" under the order. That could easily be construed to condone deportation, without conviction or trial, to a country that would be more willing than the U.S. to extract information by torture.
The order also provides that a detainee "shall not be privileged to seek any remedy . . . directly or indirectly . . . in any court of the United States." Despite denials from the administration, that provision sounds much like suspension of habeas corpus, long celebrated as the "Great Writ." Yes, if Congress approves, habeas can be suspended, but only if there has been an invasion or rebellion, neither of which is a fair characterization of September's horrific acts by a handful of terrorists.
Once an individual is scheduled to be tried by a Bush tribunal, the tribunal secures "exclusive jurisdiction with respect to offenses by the individual." Note that the executive order says "offenses," not "terrorism offenses." Thus the tribunal might acquire authority to prosecute ordinary crimes--drug dealing, say--as long as the president had "reason to believe," although not much evidence, that the defendant was also involved in terrorism.
That would not pass constitutional muster. In 1866, in Ex parte Milligan, the Supreme Court held that military tribunals may not try civilians unless the civil courts are "actually closed and it is impossible to administer criminal justice." After Pearl Harbor, Hawaiian authorities declared martial law, closed civil courts, and used military tribunals to prosecute ordinary crimes. Five years later, in Duncan v. Kahanamoku, the Supreme Court reaffirmed that martial law could not justify replacing civil courts with military tribunals.
Significantly, the court also held in Milligan that martial law may be declared only by Congress, during wartime, and subject to judicial review. That raises another grave problem with the edict: It was concocted without congressional input. Citing his power as commander in chief, Mr. Bush claims unilateral authority to establish the new tribunals. But that authority, at best, is shared with the legislative branch. Congress, not the president, is empowered by Article I, section 8, "To make Rules for the Government and Regulation of the land and naval forces."
The administration has two responses.
First, it contends that Congress has spoken. On Sept. 14, the Senate and House overwhelmingly passed a resolution authorizing "action against those nations, organizations or persons" that the president determines "planned, authorized, committed or aided" the terrorist attacks of Sept. 11. True enough, but the resolution had nothing to say about tribunals. It sanctioned the use of force, not the procedures for convicting guilty parties.
Second, the administration cites the secret military trial, ordered by Franklin Roosevelt, of eight Nazi saboteurs who had landed in the U.S. with explosives. In 1942, the Supreme Court gave its consent (Ex parte Quirin), and six of the eight were ultimately executed. Yet that case cuts the other way. For starters, it applied to agents of a foreign government who were in this country illegally. Moreover, the court upheld the right of judicial review, which is nowhere to be found in the Bush executive order, and observed that Congress had formally declared war, expressly authorizing military trials of offenses "against the law of war." No state of war has been declared today.
The Bush executive order takes a perilous step toward eviscerating the time-honored doctrine of the separation of powers, a centerpiece of our Constitution. Too much unchecked power is vested in a single branch of government. The president and his secretary of defense--if not this administration, then a successor with fewer constitutional scruples--can run roughshod over the Bill of Rights. At a minimum, to the extent that military tribunals can try legal aliens, without congressional authorization, that's bad law, and bad public policy. It is also morally indefensible. This decent and honorable president can do much better."
Mr. Levy is a senior fellow in constitutional studies at the Cato Institute. |
