The case against military tribunals
a violation of the Constitution to use the panels without a declaration
of war -- and just calling it a 'war' on terror doesn't count.
By Andrew P. Napolitano
November 29, 2009
the uproar caused by Atty. Gen. Eric H. Holder Jr.'s announcement that
the alleged planners of the 9/11 attacks are to be tried in U.S.
District Court in New York City, and the suspects in the attack on the
U.S. destroyer Cole will go on trial before military tribunals at
Guantanamo Bay, Cuba, the public discourse has lost sight of the
fundamental principles that guide the government when it makes such
decisions. Unfortunately, the government has lost sight of the
principles as well.
When President George W. Bush spoke to
Congress shortly after 9/11, he did not ask for a declaration of war.
Instead, Republican leaders offered and Congress enacted an
Authorization for the Use of Military Force. The authorization was
open-ended as to its targets and its conclusion, and basically told the
president and his successors that they could pursue whomever they
wanted, wherever their pursuits took them, so long as they believed
that the people they pursued had engaged in acts of terrorism against
the United States. Thus was born the "war" on terror.
Tellingly, and perhaps because we did not know at the time precisely
who had planned the 9/11 attacks, Congress did not declare war. But the
use of the word "war" persisted nonetheless. Even after he learned what
countries had sponsored terrorism against us and our allies with
governmental assistance, Bush did not seek a declaration of war against
them. Since 9/11, American agents have captured and seized nearly 800
people from all over the globe in connection with the attacks, and now
five have been charged with planning them.
Virtually all of
those seized who survived interrogation have been held at Guantanamo
Bay. Bush initially ordered that no law or treaty applied to these
detainees and that no judge could hear their cases, and thus he could
detain whoever he decided was too risky to release and whoever he was
satisfied had participated in terrorist attacks against the U.S. He
made these extra-constitutional claims based, he said, on the inherent
powers of the commander in chief in wartime. But in the Supreme Court,
he lost all five substantive challenges to his authority brought by
detainees. As a result, some detainees had to be freed, and he and
Congress eventually settled for trying some before military tribunals
under the Uniform Code of Military Justice and subsequent legislation.
casual use of the word "war" has lead to a mentality among the public
and even in the government that the rules of war could apply to those
held at Guantanamo. But the rules of war apply only to those involved
in a lawfully declared war, and not to something that the
government merely calls a
war. Only Congress can declare war -- and thus trigger the panoply of
the government's military powers that come with that declaration. Among
those powers is the ability to use military tribunals to try those who
have caused us harm by violating the rules of war.
time the government used a military tribunal in this country to try
foreigners who violated the rules of war involved Nazi saboteurs during
World War II. They came ashore in Amagansett, N.Y., and Ponte Vedra
Beach, Fla., and donned civilian clothes, with plans to blow up
strategic U.S. targets. They were tried before a military tribunal, and
President Franklin D. Roosevelt based his order to do so on the
existence of a formal congressional declaration of war against Germany.
In Ex Parte Quirin, the Supreme Court case that eventually upheld the
military trial of these Germans -- after they had been tried and after
six of the eight defendants had been executed -- the court declared
that a formal declaration of war is the legal prerequisite to the
government's use of the tools of war. The federal government adhered to
this principle of law from World War II until Bush's understanding of
the Constitution animated government policy.
decision to try some of the Guantanamo detainees in federal District
Court and some in military courts in Cuba is without a legal or
constitutional bright line. All those still detained since 9/11 should
be tried in federal courts because without a declaration of war, the
Constitution demands no less.
That the target of the Cole
attackers was military property manned by the Navy offers no
constitutional reason for a military trial. In the 1960s, when Army
draft offices and college ROTC facilities were attacked and bombed,
those charged were quite properly tried in federal courts. And when
Timothy McVeigh blew up a federal courthouse in Oklahoma City; and Omar
Abdel Rahman attempted in 1993 to blow up the World Trade Center, which
housed many federal offices; and when Zacarias Moussaoui was accused in
the 9/11 attacks,all were tried in federal courts. The "American
Taliban," John Walker Lindh, and the notorious would-be shoe bomber,
Richard Reid, were tried in federal courts. Even the "Ft. Dix Six,"
five of whom were convicted in a plot to invade a U.S. Army post in New
Jersey, were tried in federal court. And the sun still rose on the
mornings after their convictions.
The framers of the
Constitution feared letting the president alone decide with whom we are
at war, and thus permitting him to trigger for his own purposes the
military tools reserved for wartime. They also feared allowing the
government to take life, liberty or property from any person without
the intercession of a civilian jury to check the government's appetite
and to compel transparency and fairness by forcing the government to
prove its case to 12 ordinary citizens. Thus, the 5th Amendment to the
Constitution, which requires due process, includes the essential
component of a jury trial. And the 6th Amendment requires that when the
government pursues any person in court, it must do so in the venue
where the person is alleged to have caused harm.
Supreme Court cases have ruled that any person in conflict with the
government can invoke due process -- be that person a citizen or an
immigrant, someone born here, legally here, illegally here or whose
suspect behavior did not even occur here.
Think about it: If
the president could declare war on any person or entity or group simply
by calling his pursuit of them a "war," there would be no limit to the
government's ability to use the tools of war to achieve its ends. We
have a "war" on drugs; can drug dealers be tried before military
tribunals? We have a "war" on the Mafia; can mobsters be sent to Gitmo
and tried there? The Obama administration has arguably declared "war"
on Fox News. Are Glenn Beck, Bill O'Reilly and I and my other
colleagues in danger of losing our constitutional rights to a
government hostile to our opinions?
I trust not. And my trust
is based on the oath that everyone who works in the government takes to
uphold the Constitution. But I am not naive. Only unflinching public
fidelity to the Constitution will preserve the freedoms of us all.
P. Napolitano, a former judge of the Superior Court of New Jersey, is
the senior judicial analyst at the Fox News Channel. His next book is
"Lies the Government Told You: Myth, Power, and Deception in American
2009 Los Angeles Times