Military Tribunals: Constitutional, Legal and Just

Critics of Bush's Executive Order Ignore Constitution, History, Law and Justice
Military Tribunals: Constitutional, Legal and Just
By Terence P. Jeffrey
The Week of November 26, 2001

President Bush signed an executive order November 13 authorizing military tribunals—rather than civilian courts—to try foreign terrorists accused of attacking the United States.

Liberals and conservatives alike have attacked this order, alleging it violates the spirit, if not the letter, of the Constitution.

But President Bush’s directive not only is good policy, it is also good law. It is good policy because it logically follows through on the sound decision, made by Congress, to formally authorize a war against the September 11 terrorists and to treat these terrorists as foreign enemies rather than domestic criminals. It is good law because it keeps faith with the express language and intent of the Constitution, 200 years of congressional legislation, and centuries of common law practice embedded in the unchanging principles of natural law.

When did the U.S. begin using military tribunals, rather than civilian courts, to try unlawful combatants?

The U.S. began using military tribunals, rather than civilian courts, to try unlawful combatants during the Revolutionary War.

In keeping with longstanding British practice and the laws of war recognized by civilized nations, George Washington, commander in chief of the Continental Army, routinely employed such tribunals. In the most famous instance, he signed the death warrant for Maj. John André, the young British officer who conspired with Benedict Arnold.

In 1780, a U.S. patrol intercepted André, wearing civilian clothes, near the Hudson River. In his shoe, André carried handwritten notes from Arnold instructing British forces how to kill or capture the 3,086 U.S. troops upriver from New York City.

Washington handed André over to a "Board of General Officers" to be tried. This tribunals swiftly determined that: "Major André . . . ought to be considered a spy from the enemy, and that, agreeably to the law and usage of nations . . . he ought to suffer death."

André abjectly pleaded with Washington. He did not ask for his life to be spared. He asked, instead, that he be shot—a gentleman’s death—rather than hung—the ignominious penalty accorded a spy.

"Buoyed above the terror of death by the consciousness of a life devoted to honorable pursuits and stained with no action that can give me remorse, I trust that the request I make to your Excellency at this serious period, which is to soften my last moments, will not be rejected," André wrote to Washington. "Sympathy toward a soldier will surely induce your Excellency and a military tribunal to adapt the mode of my death to the feelings of a man of honor."

Washington would have none of it. He sent word to the British Gen. Henry Clinton that he was willing to trade André for Arnold—so he could hang Arnold instead—but that, barring a trade, he would hang André as a spy. Clinton did not deal; Washington did not hesitate. André swung from the gallows on Oct. 2, 1780.

Did ratification of the Constitution override the "law of nations," and replace military tribunals with civilian courts?

No. The Constitution explicitly incorporates the "law of nations" into the basic law of the United States.

Article 1, Section 8, Clause 10 states: "Congress shall have power . . . To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations."

The phrase "law of nations" refers to that part of the absolute moral law—the Laws of Nature mentioned in the Declaration of Independence—that governs relations between nations, and between nations and other external forces such as pirates and terrorists.

James Wilson, a Philadelphia lawyer, signed both the Declaration of Independence and the Constitution. George Washington appointed him to the first Supreme Court. In 1791, in a lecture, he explained the term "law of nations":

"The law of nature, when applied to states or political societies, receives a new name, that of the law of nations," wrote Wilson. "The law of nations, as well as the law of nature, is of obligation indispensable: the law of nations, as well as the law of nature, is of origin divine."

Wilson specifically cited states and leaders who commit unjust acts of war as violators of the law of nations.

"[T]he conduct of nations has too often been diametrically opposite to the law, by which it ought to have been regulated," wrote Wilson. "In the judgment of some writers, it would seem, for instance, that neither the state which commences an unjust war, nor the chief who conducts it, derogates from the general sanctity of their respective characters. An ardent love of their country they seem to have thought a passion too heroick, to be restrained within the narrow limits of systematick morality; and those have been too often considered as the greatest patriots, who have contributed most to gratify the publick passion for conquest and power. States, as well as monarchs, have too frequently been blinded by ambition. Of this there is scarcely a page in ancient or modern history, relating to national contentions, but will furnish the most glaring proofs. The melancholy truth is, that the law of nations, though founded on the most solid principles of natural obligation, has been but imperfectly viewed in theory, and has been too much disregarded in practice. . . .

"The law of nations, properly so called, is the law of states and sovereigns, obligatory upon them in the same manner, and for the same reasons, as the law of nature is obligatory on individuals. Universal, indispensable, and unchangeable is the obligation of both."

Is it possible the Framers did not understand they were giving Congress power to create military tribunals to try spies, pirates and the like when they incorporated the "law of nations" into the Constitution?

No. George Washington, who personally approved the military death sentences of Major André and other British spies and saboteurs, presided over the Constitutional Convention. Alexander Hamilton, a prime mover at the convention who became co-author of the Federalist papers supporting ratification of the Constitution, was Washington’s military secretary during the Revolution. He personally parried with British negotiators over the fate of André and quite likely handled the paper work dealing with the death sentence Washington approved. Hamilton’s chivalrous sensibilities were offended when Washington would not agree to have the British major shot rather than hung, but he lodged no objection to André’s execution itself.

How did Congress use its constitutional authority to "define and punish . . . offenses against the law of nations"?

Congress has enacted legislation delegating to the President and the U.S. military the power to create military tribunals to try enemies of the United States who violate the "law of nations" and the "law of war." The "law of war" is that part of the law of nations that governs how combatants should behave.

An 1806 act of Congress, signed by President Thomas Jefferson, imposed the death penalty on alien spies "according to the law and usage of nations, by sentence of a general court martial." In its unanimous 1942 decision in Ex Parte Quirin, the Supreme Court said this 1806 law "is a construction of the Constitution which has been followed since the founding of our government. It has not hitherto been challenged, and, so far as we are advised, it has never even been suggested in the very extensive literature of the subject that an alien spy, in time of war, could not be tried by military tribunal without a jury."

Yes. Congress has more completely codified the authority of the Executive Branch in dealing with violations of the law of nations.

In 1862, during the Civil War, Congress amended the law to include "all persons," rather than just aliens, so that U.S. citizens who operated in civilian clothing as Confederate spies and saboteurs, could be tried by military tribunals and executed. For example, a military commission in 1865 ordered the hanging of Robert C. Kennedy, a Confederate Army captain, after he was captured in New York, in civilian clothes, plotting to burn down the city. (The essential difference between Kennedy and al Qaeda terrorists is that Kennedy was an American citizen.)

President Franklin Roosevelt issued an executive order in 1942 stating that anyone committing sabotage, espionage or other hostile acts on behalf of America’s enemies "shall be subject to the law of war and to the jurisdiction of military tribunals." Roosevelt was authorized to issue this order by congressional statutes, referred to as the "Articles of War," incorporated into Title 10 of the U.S. Code.

Does current law authorize President Bush to create military tribunals to try the September 11 terrorists?

Yes. In his order authorizing military tribunals to try the September 11 terrorists Bush cited the resolution passed by Congress authorizing him to make war against these terrorists and the same Title 10 of the U.S. Code that authorized Roosevelt to use military tribunals to try Nazi saboteurs. Bush specifically cited sections 821 and 836 of Title 10.

Section 818, qualifying section 821 says, "General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war."

Section 821 says: "The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts or other military tribunals."

Section 836 gives the President exclusive authority to set procedures for such trials: "Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter."

Will the Supreme Court uphold Bush’s order if Osama bin Laden insist on a constitutional test case?

It is impossible to predict what might be done by a Supreme Court that has declared partial-birth abortion a constitutional right and prayer in schools a constitutional wrong. But the court’s precedent is emphatic. When eight Nazi saboteurs, sent into the United States by Adolf Hilter, challenged the constitutionality of Roosevelt’s war commission, the court ruled unanimously for Roosevelt.

In Ex Parte Quirin, the Supreme Court said: "From the very beginning of its history, this court has applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status and duties of enemy nations, as well as of enemy individuals. . . . Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders for offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.

"By his order creating the present commission, he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war."

Do the 5th and 6th Amendments protect a terrorist’s right to a trial by jury and to compel witnesses?

No. The 5th and 6th Amendments do not have universal application. They expressly exempt, for example, military personnel in time of war or national emergency. "No persons shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," says the Bill of Rights, "except in cases arising in the land or naval force, or in the militia, when in actual service in time of war or public danger . . ."

In Ex Parte Quirin, the Supreme Court noted that the 5th and 6th Amendments applied to the trials under Article III, the judicial section of the Constitution, which was intended to guarantee a jury trial only in those circumstances where they already existed under common law, and not to create a new right to jury trials where they did not exist under common law. Under common law, military tribunals, not juries, tried alleged offenses against the "law of nations."

The authority to "define and punish . . . offenses against the law of nations" was vested in the Congress (not the judiciary), as per Article 1, Section 8, Clause 10, and Congress, following common law, delegated that power to military commissions. In 210 years, no Supreme Court has over-ruled this congressional prerogative.

In Quirin, the court thought it absurd that the Framers would have exempted U.S. military personnel from the 5th and 6th amendments in time of war, but not the enemies they were fighting:

"We cannot say that Congress, in preparing the 5th and 6th Amendments, intended to extend trial by jury to cases of alien or citizen offenders against the law of war otherwise triable by military commission, while withholding it from members of our own armed forces charged with infractions of the Articles of War punishable by death.

"It is equally inadmissible to construe the Amendments—whose primary purpose was to continue unimpaired presentment by grand jury and petit jury in all those cases in which they had been customary—as either abolishing all trial by military tribunals, save those of the personnel of our own armed forces, or, what in effect comes to the same thing, as imposing on all such tribunals the necessity of proceeding against unlawful enemy belligerents only on presentment and trial by jury.

"We conclude that the 5th and 6th Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury."

Congress can no more give this power to the Executive Branch any more than it can give the coining of money to the Judicial Branch.

Congress can and does delegate execution of the laws it passes to the executive branch, like the coining of money, which power was given to Congress in the very same section of the Constitution, Art. I Sec. 8, as the power to punish Offences agains the Law of Nations. The former is just 5 paragraphs before the latter. We are not detaining and trying known soldiers, we are detaining and trying people who may or may not be "terrorists"

This is no different than the case of the German sabotours from WW-II. The only way to know if they were sabatours was to try them, which we did, by Military Tribunal. Spies and sabatours (which is pretty much what terrorists are anyway) don't carry ID cards you know, at least not foreign military ones.

So now is the time to be arguing this? Let the man do what's gotta be done, all others should stand down... no, get the hell outta the way!

If anyone wants to debate the finer points and meaning of the powers vested in the presidency they shoulda' done it long before now, like during the Clinton era. How many EO's did he sign? And how many were beyond his legal right?

Before you argue GW's EO when the safety of perhaps millions of Americans are at stake, go back and argue some of Clinton's.

Phil,
This article really nails the door shut on the subject of the authority of President Bush to order military trials for alien terrorists. I hate to say this, but this layman writer did a much better job of the homework on this than Dean Kmeic of Catholic University.
The most interesting part of this article is that Congress has ALREADY APPROVED such millitary trials during wartime, in a statute passed in 1806, after we declared war on the Barbary pirates. That statute is part of the current US Code, and has never been repealed or changed.
Congress will NOT, not in a million years, repeal wartime powers granted to President Jefferson because some Democrats don't want President Bush II to use those powers. Game, set and match. Democrats lose. Bush wins. Military tribunal Order will stand.
To Senators Leahy, Schumer, etc.: BNAAAAA. But thank you for participating.

Congressman Billybob

Agreed - I wonder if the implications of the previous poster's point have really been considered? How many bills are passed that are approximately of the form "Federal agency 'X' shall create some sort of regulation regarding issue 'Y'"?

Although, if Congress really couldn't delegate powers, we'd have a much smaller Federal government - not an unattractive thought, I admit ;)

Dear Dirtboy,
I've done some serious research on the subject of the "Law of War," but this writer has done more homework than me. Congress already HAS acted. It gave the power to create such military tribunals to President Jefferson at the outset of the War against the Barbary Pirates (the only other war in which our enemy was not one or more nations, but was a group of armed and dangerous men located in several countries).
This law from 1806 was recognized as still in effect in 1942, when a unanimous Supreme Court let stand the convictions and sentences of eight German saboteurs by a military tribunal, as ordered by President Roosevelt in World War II.
So, I gather you withdraw your objection from the other thread that Congress SHOULD authorize such tribunals, because Congress already HAS authorized them. What are the chances that Congress will repeal this authority, which was used by Presidents Jefferson, Lincoln, perhaps Wilson, and Roosevelt in order to prevent President Bush II from using it?
Before you state an aswer to that, remember that the repeal of Congress' granted authority will have to not only pass both Houses of Congress, it will have to have enough votes to survive a veto. I put the odds of that happening -- that Congress will go soft on terrorists while we are in a war against terrorists because the left wing of the party wants that result -- at nil, nada, rien, zilch.
Do you concur?

Congressman Billybob

Please, my friend, get it straight.
President Bush's Order allows military tribunals to try ALIENS, but it does NOT apply to CITIZENS. No rights possessed by any AMERICAN are compromised one whit by this Order.
As for whether such an Order is constitutional, the Supreme Court said yes, unanimousnly, in Ex Parte Quinn in 1942. And President Roosevelt's Order that was upheld in that case, DID apply to citizens as well as aliens. SO, if Roosevelt's broader Order was valid, self-evidently, Bush's narrower Order is also constitutional.
The only way that certain Democrats can push this issue is to lie about the history of such tribunals, and get gullible people to believe their lies. Don't be gullible. Get the facts, and reject the lies.

Congressman Billybob

Somebody needs to sort out whether or not the UN has any viable function. Armed response was authorized by congress, the war is rhetorical. If it's a war, the Geneva convention applies, ala Viet Nam.

The selective use of force is going to erode the US credibility and standing in the international arena, sooner or later.

You can't blame Bush for going after Biin Laden & associates, but the Star Chamber business is a nightmare.

By definition, drug dealers meet the test, but that leads back to the CIA.

Thanks for the info, it points out a lack of research on my part. Since it's limited to aliens only, I heartily approve of the Bush EO. Seems like all security measures in the works have been to limit the freedom of law-abiding citizens rather than the actual danger, alien terrorists. This is like shutting the barn door when your house is burning down...

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