Abandoning the Constitution to Military Tribunals

During his terms as governor of Texas, George W. Bush made it clear that he was dangerously ignorant of the Constitution—not only denying due process to the record number of people he executed but also refusing effective counsel to indigent inmates of Texas prisons.

But as president, Bush, terrorized by the terrorists, is abandoning more and more of the fundamental rights and liberties that he—and his unquestioning subordinates—assured us they were fighting to preserve.

On Thursday, November 15, William Safire—The New York Times' constitutional conservative—distilled Bush's new raid on the Constitution:

"Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. . . . We are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts. . . . In an Orwellian twist, Bush's order calls this Soviet-style abomination 'a full and fair trial.' "

What Bush has done by executive order—bypassing Congress and the constitutional separation of powers—is to establish special military tribunals to try noncitizens suspected of terrorism. Their authority will extend over permanent noncitizen American residents, lawfully living in the United States, as well as foreigners.

The trials will be held here or in other countries—like Pakistan or "liberated" Afghanistan—and on ships at sea. The trials will be in secret. There will be no juries. Panels of military officers will be the judges—with the power to impose the death penalty if two-thirds of these uniformed judges agree. There will be no appeals to any of the sentences. (Even in regular court martials, judges must rule unanimously for executions.)

The defendants may not be able to choose their own counsel—lawyers who, after all, might get in the way of the swift justice commander in chief Bush has ordered.

The military tribunal will have other, more extensive ways to undermine the rule of law than exist in court martials or regular trials. The evidence to be allowed will be without the range of protections accorded defendants in what used to be the American system of justice.

For example, under "the exclusionary rule" in American courts, illegally obtained evidence cannot be used at a trial. Neither can hearsay evidence, which can include rumor and other unverified information about which a witness has no personal knowledge. Such evidence helps produce a death sentence.

Much of the prosecution's evidence will be withheld from the defendant and from whatever lawyer he or she can get because it will allegedly be based on classified intelligence sources. And the military officers in charge will, of course, decide the severe limits on the defense in other respects as well. These secret trials will be based, to a large extent, on secret evidence.

As for proving guilt, the standard will fall below "beyond a reasonable doubt." In a startled response, Democratic senator Patrick Leahy, who caved in to the administration and supported the anti-terrorism bill, with its pervasive assaults on the Constitution, has awakened to what this reckless president is capable of.

Leahy said in the November 15 New York Times that these drumhead tribunals with their arbitrary standards can "send a message to the world that it is acceptable to hold secret trials and summary executions without the possibility of judicial review, at least when the defendant is a foreign national."

Bush is sending a corollary message to the world that is particularly dangerous to American citizens arrested by foreign governments on charges of endangering their national security—journalists reporting "state secrets," travelers talking to native dissenters, or overly curious visiting academics. If the United States can prosecute and even execute loosely identified "supporters" of "terrorism" secretly and swiftly, why can't other countries follow that lawless example in their own interests?

Until now, Attorney General John Ashcroft has taken most of the direct heat for the Bush administration's contempt of both the Bill of Rights and the separation of powers, as well as its ending of lawyer-client confidentiality for dragnet suspects in federal prisons, and its holding of suspects in prisons for days and weeks without releasing their names or the charges, if any, while their families and lawyers search for them.

But now, as the only president we've got, Bush has taken center stage as he further dismantles the Constitution through these military tribunals. In this executive order he has issued as commander in chief, only he—our maximum leader—will decide, in each case, who is to be brought before what in the Old West were called "hanging judges." Then Secretary of Defense Donald Rumsfeld will appoint members of the tribunals and set up the rules. Remember, there will be no appeals to United States courts or to international tribunals.

We have already seen on television and elsewhere in the media a parade of apparatchiks of the president. Included are his loyal vassals in the administration and various legal scholars of realpolitik. This is a war, they intone, and these (presumptive) terrorists do not deserve to be judged by our constitutional standards.

Moreover, Bush's good soldiers add, there can't be an open trial, as the Constitution demands, because our intelligence sources would be revealed. Under the once vaunted American system of justice, defense lawyers would have been entitled to see some of that evidentiary background. But in an open court, the president's defenders argue, witnesses against these dread defendants would be in danger of their lives from the terrorists' hidden colleagues among us.

In the November 15 New York Times, Professor Phillip Heymann of Harvard Law School, a former deputy attorney general, was asked about such rationales:

"Mr. Heymann said that some terrorists, notably those charged in the 1993 World Trade Center bombing, had been successfully prosecuted in the civilian courts with a law [the Classified Information Procedures Act] that allows classified information to be used in a trial without being disclosed to the public.

"Similarly . . . Mr. Heymann said that countless Mafia and drug-cartel trials had been conducted where both witnesses and jurors were protected."

Then Heymann cut to the duplicitous core of George W. Bush's summoning of the military tribunals:

"The tribunal idea looks to me like a way of dealing with a fear that we lack the evidence to convict these people."

On Ted Koppel's Nightline (November 14), Harvard Law School professor Anne Marie Slaughter reminded the president and the rest of us that this war is being fought to protect and preserve American values.

"One of these values," she said, "is justice. And we have an entire system designed to achieve that. To forsake that now is to betray the cause we're fighting for."

Also, with regard to our pride in the American system of justice, Slaughter pointed out, "We are trying to gain the confidence and the support of people in Muslim countries around the world, as well as in our own coalition. From that point of view, this is disastrous. They're asking us for evidence [of worldwide terrorism]. We're now saying, 'Well, we can't give you evidence.' "

Brushing these counterarguments aside, defenders of the president insist there are historical precedents for these military tribunals—the trial and hanging of British secret agent John Andre in 1780; the convictions during the Civil War by the Union army of opponents of Abraham Lincoln's policies; and the trials and executions of German saboteurs sneaking into this country during the Second World War.

In response, Georgetown University law professor David Cole emphasized on Nightline, "The only times that military tribunals have been permitted in the past have been in a declared war with respect to enemy aliens—people who are involved in fighting against us in a declared war on behalf of a nation with which we're at war."

Bush asked for an official declaration of war, but Congress declined. So, as Cole said, "We are not in a declared war." Furthermore, "this [Bush executive order] is not limited to people, even to the Al Qaeda people who are fighting against us. This is an extremely broad executive order . . . that's wholly unprecedented."

As the November 15 Washington Post reported: "[This order] would grant the Bush administration complete freedom to set the terms of the prosecution. Defendants could include suspects in attacks on Americans or U.S. interests, and anyone suspected of harboring them." And Ashcroft has "raised the possibility that the government may seek military trials against [the large numbers of] suspects now in custody"—not one of whom has been connected to the September 11 attacks.

At one point in the debate over the USA PATRIOT Act (the anti-terrorism bill), the ACLU reminded us that "the president is not above the law." Now the ACLU, in view of the military tribunals Bush has set up, calls on Congress "to exercise its oversight powers before the Bill of Rights in America is distorted beyond recognition."

In view of Congress's yielding most of what John Ashcroft wanted in his and Bush's anti-terrorism bill—despite the damage to the Bill of Rights—its members, concerned with being reelected in this time of terrorism, are not likely, with a few exceptions, to rise to the defense of American values and laws.

Justice Louis Brandeis, dissenting in the first wiretap case before the Supreme Court (Olmstead v. United States, 1928), foreshadowed the advent of George W. Bush:

"Our Government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. . . . To declare that in the administration of the criminal law, the end justifies the means . . . would bring terrible retribution. Against this pernicious doctrine this Court should resolutely set its face."

In 1928, the Supreme Court agreed with the government's subversion of the Fourth Amendment's privacy protections—setting the initial stage for the current vast expansion of electronic surveillance by the Bush administration—and not only over suspected terrorists. The Court has another chance now to teach the president that he is not above the law. Tell that to your representatives and senators—now!

For the discussion................

Attorney General John Ashcroft on Military Tribunals for Terrorists
Department of Justice Press Conference, November 14, 2001
Q General Ashcroft, do you think it's preferable for Osama bin Laden and members of al Qaeda to be tried in a military tribunal? And wouldn't the American people have more confidence if they were tried in the U.S. legal system?
ATTY GEN. ASHCROFT: Well, let me just say that the United States is in the state of war, and I think it's important to give the president of the United States the maximum flexibility consistent with his constitutional authority.
A military commission that was mentioned in the order of the president would provide a jurisdiction for trying individuals who had committed or perpetrated war crimes, and these would be war crimes perpetrated by foreign nationals. These are not ordinary criminal events, and certainly not individuals who are American citizens.
In the course of the war, we may capture terrorists in places like Afghanistan, who I don't think we should have to bring back to the United States in order to bring them to justice.
Let me just indicate that there is a very substantial history in this arena. Military commissions have been used throughout history, since the Revolution and the War of 1812 and the Mexican-American War, the Civil War, and World War I and World War II. And World War II was the last war, I think, where we actually had people try to come ashore to do injury and harm in the United States.
The Supreme Court has upheld the constitutionality of the military commissions, particularly in the Quirin, regarding the Second World War, where President Roosevelt established the commission to try specific individuals. And in that case, it's substantially different than it is in this case because Roosevelt's order was a secret order, not known to the American people. And the scope of the order even applied to American citizens who were a part of any such activity, which happened to have been the case at the time.
The order issued by President Bush neither seeks to address citizens in the order, nor is it a secret order. It's pretty clear to me that the president is very well within the limits that have been sanctioned by the United States Supreme Court for the development of these kinds of options for treating war criminals -- not part of the criminal justice system of the United States, but war criminals. And foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution, particularly when there could be very serious and important reasons related to not bringing them back to the United States for justice.
Q Attorney General, you seem to be indicating that if Osama bin Laden is captured, he will, indeed, be tried via court-martial overseas. Is that the implication?
ATTY GEN. ASHCROFT: I'm not meaning to imply anything in particular. I think the order provides options for the president of the United States, so that he has the flexibility to act in the national interest, to deal with any circumstance that might arise.
Yes, sir.
Q This would seem to be, though, a departure from the past practice, where terrorists have been brought, in most cases, to New York for prosecution by the Southern District of New York, no matter where the incident was or where they were found. So what you're saying now is that, in the case of al Qaeda, from here on they may or may not be brought back to New York, that they may be prosecuted overseas?
ATTY GEN. ASHCROFT: I think it's important to understand that we are at war now. And it's pretty clear that the acts of the terrorists on the United States soil against innocent individuals in the United States -- acts which have subsequently been endorsed by the terrorists in their statements about how they say the United States' innocent people deserve this kind of treatment -- these are acts of war.
That distinguishes this setting from a variety of other settings. I'm not -- you know, there are similarities to some other settings. For instance, when people came ashore from Germany who came in from submarines in the Second World War, and the then-president of the United States said, "Those who invade our country, come here with the purpose of destroying America should be tried by a military commission in a time of war." I think there are similarities there.
It's important to note that the president has undertaken to issue this order as a way of providing himself with the flexibility of decision-making to deal with circumstances appropriately in a time of war. And I personally believe it's wise of the president to do so.
Q (Inaudible) -- is a war crime?
ATTY GEN. ASHCROFT: I believe those who flew airplanes into the World Trade Center, who commandeered airplanes that either crashed in Pennsylvania or into the Pentagon of the United States and those who assisted them in doing so committed the kinds of criminal activity that would qualify as war crimes.
Q And those overseas who might be charged with complicity?
ATTY GEN. ASHCROFT: I believe those people who were involved in those acts committed war crimes against the United States and against other nations. Let us not forget that what we are doing in this entire effort and the leadership of the president and the coalition of those supporting him reflects an understanding that people from 86 nations, innocent individuals from 86 nations were destroyed in these outrageous acts of terror. And they're acts of war against civilization in my judgment, as well as against the United States.
Yes, sir.
Q Sir, if there are people found in the investigation in this country that you're able to link to the September 11th attack, you know, for instance, among those already in custody, would you support seeing them tried in a military setting?
ATTY GEN. ASHCROFT: The president of the United States has created this order with a view toward developing the flexibility of providing him with the range of options necessary to protect our national interests. And the order speaks for itself.
Yes.
Q How much of it was driven by the fear that any trial in the U.S. could lead to further terrorist attacks?
ATTY GEN. ASHCROFT: My view is that this order is a very responsible exercise of the president's judgment to make sure that the options available to him to represent the national interests of the United States are as broad as they can be in order to make sure that we're successful in the pursuit of the war against terrorism. And that's the purpose of this.
I don't believe the president is focusing on a specific circumstance. He wants to say as we approach the maturation of this effort, we want to have a full range of options available to defend the interests of the American people.
Q Do you think the trials should be in public?
ATTY GEN. ASHCROFT: You know, I'm not going to comment on specific practices and procedures. When you're at war, there are times when you share information with the enemy, times when you don't share information with the enemy, and there are good reasons, depending on circumstances, to either do that or not do it.

MILITARY COMMISSIONS:
SOME PERHAPS LEGAL, BUT MOST UNWISE
Professor Jordan J. Paust
University of Houston Law Center
JURIST Guest Columnist
When I was a Captain on the faculty of the Army JAG School during the Vietnam War, we worked up a military commission on paper to try ex-service persons for alleged war crimes. DOD also prepared a study on such a commission in 1970. Government officials and/or President Nixon nixed the idea, however, stating that it was politically "too hot" to live up to our obligations under international law to bring those reasonably accused into custody and then to initiate prosecution or extradite, thus setting up a continual violation of international law by the United States. See, e.g., 50 Tex. L. Rev. 6 (1971). The military commission would have generally followed the Federal Rules of Criminal Procedure, and we wanted to have former federal judges as judges in order to assure that convictions were less likely to be challenged in view of the expansion of due process guarantees since World War II. The 1970 DOD study noted that jury trials are not required, but “specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial,” and “[b]oth logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible.” Further, “Congress directed the President to establish procedures for courts-martial or other military tribunals which follow, to the extent practicable, the principles of law and rules of evidence generally followed in United States district courts. Article 36, UCMJ, 10 U.S.C. § 836,”
Previously, in 1951, the United Nations Command in Korea had set up other military commissions on paper. They were never activated but would have guaranteed the same procedural rights to due process that existed in general courts-martial in the U.S. military and that are required under the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, including the rights to counsel, to a “reasonable opportunity to consult with his Counsel before and during trial,” to at least three weeks notice of charges before trial and at least two weeks to prepare a defense, to interpretation of charges and “the substance of the proceedings” as well as any documentary evidence, to remain silent, to cross-examine adverse witnesses, to a presumption of innocence “until his guilt is established by legal and competence evidence beyond a reasonable doubt,” and to trial in compliance with “the rules of evidence prescribed in the Manual for Courts-Martial, United States, 1951.” See U.N. Supplemental Rules of Criminal Procedure for Military Commissions of the United Nations Command, Korea, in Paust, Bassiouni, et al., International Criminal law Documents Supplement 155-61 (2000).
The President's Commander-in-Chief power to set up military commissions apparently ends when peace is finalized. See, e.g., Ex parte Quirin (1942); In re Yamashita (1946); Paust, Bassiouni et al., International Criminal Law 309-10 (2d ed. 2000); Digest of Opinions of the Judge Advocate General 1067 (1912). Presently, we are clearly at war (however undeclared) in Afghanistan (i.e., the insurgency between the Taliban and the Northern Alliance was upgraded to an international armed conflict when the U.S. used military force in Afghanistan on October 7th) and in the Gulf region with respect to Iraq (i.e., regarding the continuing international armed conflict in that region)-and both international armed conflicts trigger application of the 1949 Geneva Conventions and other customary laws of war. While the "war" remains, we could set up a military commission to try those reasonably accused of terrorism in violation of international law, crimes against humanity, genocide, or war crimes, as we did with respect to the trial of General Yamashita for war crimes. However, the relevant Commander-in-Chief power would appear to end when "war" (not merely "hostilities") ends. Thus, it may not be in our long-term interest to set up such a military commission to prosecute all who are reasonably accused, as opposed to setting up a regional or more general international criminal court by Executive Agreement. A regional or more general international criminal court with jurisdiction over impermissible acts of terrorism would be able to prosecute accused long after peace is reinstated.
Additionally, we have told the world that we are fighting terrorism for democratic values and freedom. Certain forms of military commissions could appear to be most inappropriate in view of what we stand for and what we have told the world we are fighting for and against. Military commissions are generally suspect under newer international criminal law-human rights treaties. See, e.g., the Inter-American Convention on the Forced Disappearance of Persons. At a minimum, such commissions must now comply with Article 14 of the International Covenant on Civil and Political Rights, which the ICTY and ICTR recognize, among others, sets forth a minimum set of customary and treaty-based human rights to due process. These rights include the general right to “a fair and public hearing by a competent, independent and impartial tribunal established by law,” although the press and public can be excluded for reasons, for example, of “public order (ordre public) or national security in a democratic society”; the right to be presumed innocent until proved guilty; the right to be informed promptly and in detail in a language the accused understands of the nature and cause of the charge(s) against him; the right “to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”; the right “to be tried without undue delay”; the right “to be tried in his presence, and to defend himself in person or through legal assistance of his choosing”; the right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf”; the right “to have the free assistance of an interpreter”; the right “not to be compelled to testify against himself or to confess guilt”; and the right “to have his conviction and sentence...reviewed by a higher tribunal according to law.” Section 4 (C) (8) of President Bush’s November 13th Executive Order clearly violates the human right to an appeal in a higher tribunal. Also, under Article 7 of the International Covenant and customary human rights law, torture and cruel or inhumane treatment clearly would be illegal. Politically at least, other common rules of evidence adopted by the ICTY and ICTR should form part of the rules of evidence of any military commission that the U.S. creates. Additionally, foreign states cannot lawfully extradite accused to the U.S. when there is a real risk that their human rights will be violated. See, e.g., Chahal v. United Kingdom, Eur. Ct. H.R. (1996); the Soering Case, Eur. Ct. H.R. (1989).
There are also important constitutional issues involving due process, especially in view of the rationale in Reid v. Covert (1957) concerning the power or authority of the government of the United States (despite cases like Eisentrager). See also United States v. Yunis (D.C. Cir. 1988); United States v. Tiede (U.S. Ct. for Berlin 1979), extracts in Paust, Bassiouni, et al., supra. The Reid rationale is consistent with the myth system adopted since the Founders that ours is a government of delegated powers and one that is entirely a creature of the Constitution and has no power or authority to act here or abroad inconsistently with the Constitution. See also Ex parte Quirin (“Congress and the President...possess no power not derived from the Constitution.”). Under this approach, the major question is not whether aliens abroad in time of war have rights, but whether our government has any power or delegated authority to act inconsistent with the Constitution. See also Ex parte Milligan (1866) (recognizing that the Executive has no powers outside the Constitution or ex necessitate, that the Constitution “covers within the shield of its protection all classes of men, at all times, and under all circumstances,” and, importantly, that trials must occur in federal district courts when such courts are reasonably available). One specific question is whether or not the President, without approval by Congress, has the power to suspend habeas corpus, as he attempts to do so under Section 7 (B) (2) (i) of the November 13th Executive Order. Although President Lincoln did so during the Civil War, it is not clear that his action was constitutional, especially since suspension is addressed in Article I of the Constitution in connection with congressional powers and Congress actually ratified Lincoln’s action in 1863. See Youngstown Sheet & Tube v. Sawyer (1952) (Douglas, J. concurring), citing Ex parte Merryman (1861). Further, habeas corpus review was available to accused in Ex parte Milligan, Ex parte Quirin, and In re Yamashita, and such review has been expanded in cases like United States v. Calley. Additionally, the Court in Ex parte Quirin recognized that military commission decisions can be “set aside by the courts” when there is “clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.”
Other constitutional issues are whether or not the President can set up a military commission outside of occupied territory during an armed conflict. In 1865, Attorney General Speed advised the President: “A military tribunal exists under and according to the Constitution in time of war. Congress may prescribe how all such tribunals are to be constituted, what shall be their jurisdiction, and mode of procedure. Should Congress fail to create such tribunals, then, under the Constitution, they must be constituted according to the laws and usages of civilized warfare,” but adding that it would be “palpably wrong” to conclude that war crimes should not be prosecuted in civil courts. 11 Op. Att’y Gen. 297 (1865). From his opinion, it appears that presidential power is tied to a war circumstance and law of war competencies such as the competence of an occupying power to set up a military commission to try violations of the laws of war. However, Ex parte Quirin involved a military commission set up within the United States, within the convening authority’s field of command, in that case, the President.
In general, President Bush’s November 13th Order denies the United States needed flexibility to prosecute those reasonably accused of terrorism in a federal district court or regional or more general international fora (especially regarding those accused who are later found in various countries outside the region of Afghanistan and with respect to whom U.S. extradition requests are made); sets up violations of human rights of the accused concerning an appeal to a higher tribunal; creates constitutional problems concerning due process and the right to habeas corpus; and needlessly places some prosecutions at risk.
Jordan J. Paust is Law Foundation Professor, University of Houston, and Director of the International Law Institute. He welcomes comments on this essay at JURIST@law.pitt.edu.
November 14, 2001

Please excuse the double post. I inadvertently posted this to "sheltonmac" when I intended it as a response to "backup". I'm reposting it to "backup" now.

"That is incorrect. Cite the statute if you disagree. You may be thinking of those subject to court martials."

I disagree based upon the instruction I've received on the UCMJ in a variety of military courses, most recently Command General Staff College.

"(Even then, the Code applies only to war criminals in the cusotdy of the armed forces; not any Tom, Dick, or Harry sitting in Podunk, Iowa, and certainly not the 1,400 prisoners currently being held.) But even if you were correct, the jurisdiction of the EO is far broader than anything in the UCMJ. If it were not, what need would Bush have had to define the jurisdiction in Section 2(a)?"

This section defines a class of persons to be treated as "war criminals".

"Section 4(b)(8) puts final review of any conviction before the President."

The convening authority reviews the outcome of a courts martial or tribunal. This EO states that Bush will be the convening authority. Appeal may take place during the review process, but it includes much more, the US Court of Military Appeals and USSC for example.

"Habeas Corpus allows any person detained by any branch or agency of the government to petition an Article III court for relief."

And a military tribunal may not function as an Article III court? Where do military personnel file habeas corpus?

"Before ANY person is caught up in the judicial system as set forth in the UCMJ, there must be a charge -- an indictment so to speak."

The charging official is the President.

"The EO on the other hand, can have someone detained merely by the President signing an order. (Section 2(a)). The Sec. of Defense then arrests and detains the individual. (Section 2(b))."

And, how does this differ from other criminal cases? You have an indictment, the Presidential order, then an arrest, detention, and trial, in that order.

" I'd also point out that the EO allows the trial to take place at "any place." This is directly contrary to Article III of the Constitution."

Are you claiming that the UCMJ is unconstitutional. Courts martial (trials) can take place "any place" too.

"You are missing the bigger picture here. The UCMJ is a JUDICIAL system. Article III judges oversee it. The Executive branch does not have the authority to judge ANYTHING."

How then does the Executive Branch administer the UCMJ? Doesn't that require judging? Aren't the military judges members of the Executive Branch?

"But even MORE fundamentally... You are sitting here arguing that the EO changes nothing in the UCMJ (except the 2/3 thingie) when the EO itself states "the principles of law and the rules of evidence generally recognized in the trial of criminal cases" will not apply. (Section 1(f))"

But, even more fundamentally, "836. ART 36. PRESIDENT MAY PRESCRIBE RULES (a) 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 the 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."

You will note the part about "so far as he considers practicable". (Section 1(f)) is nothing more than a "finding" of the extent this is practicable.

Thanks for posting Paust's article as it contains some interesting perspectives.

I do have some problems with his conclusions. Specifically "In general, President Bush’s November 13th Order denies the United States needed flexibility to prosecute those reasonably accused of terrorism in a federal district court or regional or more general international fora (especially regarding those accused who are later found in various countries outside the region of Afghanistan and with respect to whom U.S. extradition requests are made); sets up violations of human rights of the accused concerning an appeal to a higher tribunal; creates constitutional problems concerning due process and the right to habeas corpus; and needlessly places some prosecutions at risk."

While it is true that this EO does deny trial in federal court when the President directs for that trial to be in these commissions, it is not true that this denies any flexibility. The President may or may not direct that any individual is subject to this EO. How is that different from the Executive Branch deciding whether or not to prosecute someone, upon the nature of the charge, and in what court to conduct the prosecution? In fact, this EO provides for increased flexibility since it authorizes additional avenues for prosecution.

Second, Paust seems to think that trial in an international forum might be the prefered action. One wonders what those opposing military tribunals would have to say about the loss of US sovereignty had Bush proposed this course of action? Do we really want to give more legitimacy to the idea that international commissions should have oversight of military operations? I think not. In addition, one wonders whether such an international commission would allow the death penalty?

Third, and most importantly, Paust criticizes the EO for not providing certain protections. I may join him in this position at some later point, but one cannot assume that these protections will be denied anyone until the SecDef, acting as directed in the EO, publishes the "rules and regulations" for the conduct of these tribuanals he was specfically instructed to prepare by the EO. Paust is assuming that these protections will not be enforced without examining the pertinent material. We should not make the same mistake.

Fourth, his concern about "needlesly placing some prosecutions at risk" seems strange. He seems to argues that justice would not be done in the military commissions because of the lack of certain protections. One can only assume, that if this were true, then a number of convictions would occur in these commissions that would not occur in federal court. Does he believe that these convictions would be overturned in federal court? I thought he was concerned about the lack of review in these federal courts ("President Bush’s November 13th Executive Order clearly violates the human right to an appeal in a higher tribunal.")? If there is no review, how can they be overturned? If there is review by a higher court, why is he concerned about the lack of review?

"sections 821 and 836 of title 10"

This part of the UCMJ is relevant to the order (understand that all serious offenses are tried by courts-martial):
"821. ART. 21. JURISDICTION OF COURTS-MARTIAL NOT EXCLUSIVE
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. "
"by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals."
The UCMJ blatantly states that it does not supercede other venues for trials.
Notably it allows for trial under the law of war in addition to allowing trials under statute.

The UCMJ is not, and was never meant to be, the venue for trying opponent's war crimes.
That has always been done by tribunal.

Unless the legislature enacts law for the trying of terrorist acts of war, which they have not, the commander in chief is well authorized to provide justice under the law of war, as best he can.

If one accepts that acts of war have been committed (and God help me I won't accept any other characterization of these acts) rather than dispute the President's authority to no point- since some provision must be made for trying these acts- skip this debate and go to the crux, and insist that the legislature fulfill it's duty to enact tribunals for these trials.

The Judiciary is not going to allow Congress to foist these war crimes into it's jurisdiction by whim.

The tribunals for trying alien terrorist warriors require a level of secrecy that our dear legislators don't want to be associated with enacting, but it is their duty . They can certainly provide, as they did with the "Patriot act", for a better- if not perfect- protection of civil and human rights than the President's very general order does.
I hope we all agree that it would be better that these tribunals be enacted under statute than by administrative order.

This whole debate misses the crux- which is that these are criminal acts of war, and that the Congress is failing in it's duty to provide law for the adjudication of them.

BTW: Here's why, if one assumes that the lack of a declaration of war means we are not at war (though I hope no one claims that the terrorists haven't been ) that the UCMJ does not apply:
"802. ART. 2. PERSONS SUBJECT TO THIS CHAPTER (10) In time of war, persons serving with or accompanying an armed force in the field."
The terrorists are not covered by the UCMJ except in time of war ("time of war" can be more general than "declared war" IMO- I'm merely exhibiting the mealy mouthing caused by use of the War Powers Resolution).

Our have-it-all-ways Congress has been caught on it's own petard by avoiding a declaration of war.

This blaming of the president instead of the congress reminds me of the impeachment, where the failure of the president to uphold the law was ignored, and the congress was instead criticized for it's efforts to deal with his failure.

With the exception of John Andre (as it has been presented in the argument so far), the other tribunals have occurred only under times of formal declarations of war. This includes the administrations of Lincoln and FDR, who are rather notorious for playing fast and loose with the Constitution.

When I add this EO with the recent EO by GWB on the Presidential Records Act, extending to all Presidents from Carter to the present the ability to delay public release of presidential records indefinitely based on nebulous and arbitrary reasons, I begin to get a picture of GWB that is not flattering to him with regards to protecting the Constitution that he has sworn to defend. (Note: revealing dirty secrets about his father's terms of office would force Bush to repudiate his father, which in turn would cause immediate questioning of his appointments to high office of so many from Bush Sr.'s administrations.)

I extrapolate that Bush realizes that these are drastic actions and would be viewed as such in most informed circles of power. I believe Bush is taking a gamble that at least some of the actions he is taking will chafe Congress and/or the courts and that at least some of the actions are at risk of being overturned. His "out" if they are overturned are the nature of the horrible events that occured, so his downside risk is possibly minimized by emotional impact of those events with the public.

Still, I believe Bush would not take such drastic acts unless he were forced to by extraordinary circumstances. I am talking about the kind of circumstances that led to the events at Ford Theater. That does not necessarily condone the actions Bush took: he signed up for the job willingly and he should have realized the risks that come with the job.

Personally, I find it dismaying that most Presidents since Lincoln have felt it necessary to preserve the cloak of privacy over these internal intrigues that swirl about the capital. The country is no longer in its infancy, nor is it challenged by some greater external military threat or civil war. There seems little excuse for letting the sun shine on the dirty secrets that have so far held the nation together. It's a judgement call, but I think the country would be stronger, not weaker, from holding to the Constitution and the Bill of Rights for all, and stronger, not weaker, from releasing information that may be personally discomforting to certain people in certain positions of power. Right now, the country becomes incrementally more vulnerable to destruction from within by removing Constitutional and lawful safeguards, and destruction from within is surely, as ever since Lincoln first remarked on it, the overriding danger, even in this day.

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Commentary: Military Commissions: Some Perhaps Legal, But... - Prof. J. Paust
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