It is likely - but not certain - that the United States Supreme Court would uphold the constitutionality of President Bush's controversial executive order that military tribunals, not criminal courts, would try non-citizen suspected terrorists. Although the High Court has come very close over the past 150 years, it has never directly addressed or resolved the specific issues raised by this order.
For example, in 1866, in Ex Parte Milligan, a narrow majority of Justices held that Congress could not authorize the use of military justice where civilian courts were available. It ruled that defendant Milligan, accused of trying to overthrow the federal government during the Civil War, had been deprived of his right to a jury trial. That long-ago ruling would tend to suggest that constitutional principles cannot be tossed aside even when military tribunals are used.
But the Court in 1942, in Ex Parte Quirin, limited the Milligan decision and held that German spies could be tried by a military tribunal since they were "unlawful belligerents war criminals." That case, decided during the heart of World War II, would strongly suggest that so long as the government labels terrorists as "war criminals," military tribunals are perfectly fine. These two precedents clearly don't agree with each other. And both surely will be cited by opposing sides in any future court battle over the constitutionality of a secret terror trial.
By way of explanation, let's ask: What exactly did the President do this week? Relying upon the Constitution, two federal statutes, and a recent Congressional Resolution, Mr. Bush declared that certain individuals who he has "reason to believe" are terrorists may "be tried for violations of the laws of war and other applicable laws by military tribunals." In addition, the president relied upon a specific statute (10 U.S.C. 836) to declare that "it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."
In English, this means the president authorized the use of military tribunals to try terrorists when the executive branch deems it appropriate to do so and that the procedures for such tribunals need not follow the rules used by federal judges in regular criminal trials. By charting this course, the president is taking the position that the Constitution permits him as part of his executive war powers to take away from the judicial system these sorts of prosecutions. That's the essence of what the president's move is all about. Should a terror trial of Osama bin Laden (to use a popular example) be handled by our criminal courts as if e were a criminal? Or should it be handled by our military, and our commander-in-chief, as if bin Laden were an adversary in war?
The first part of that equation the president's invocation of military tribunals seems to be on the firmest legal ground. On several occasions, the Supreme Court has upheld a president's power to invoke such tribunals in certain circumstances. Clearly, Congress has established statutes that contemplate the use of presidential power in this way. However, one of the initial questions, which now may be raised, is whether a formal congressional declaration of war is necessary to trigger the such power.
The Court in Quirin, for example, declared that: "The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war." This language could suggest to judges that absent a "war which Congress has declared" the president's power to wage that war is limited to the extent it infringes upon constitutional rights.
This may be easy to resolve; Mr. Bush could ask Congress officially declare war. Although the fact that Congress has not yet done so suggests to some that there is great political pressure not to.
But some say a formal declaration of war is not necessary for the president, so long as Congress otherwise makes clear its support for presidential war-time powers, which the legislative branch seems to have done since Sept. 11. It also might help the Administration in any future court fight over this if Congress now were to express its approval for military tribunals.
Another question raised by the week's events is whether the federal law upon which President Bush relied is a legal and proper delegation by Congress to the executive branch. For example, can Congress (through Section 836 of Title 10) permit the president to ignore "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in [federal] courts"?
This is a question which has never been directly answered by the Supreme Court, which generally doesn't take kindly to the legislative branch intruding in advance upon its power to establish and interpret laws. It's one thing for Congress to establish the definitions and punishments for federal crimes; it's another thing for Congress to give the president advance authority to do away with procedural rules and constitutional safeguards.
Perhaps the most significant question raised by the President's order one without clear precedent - is whether the tribunals, once established, may ignore, even in the case of foreign terrorists, the rights which inure even to foreign nationals found in America. Again, the Quirin/I> decision likely will guide any future Court analysis.
In that case, the Court found that since the defendants were enemy belligerents and had engaged in "offenses against the law of war, and not mere crimes," they were not entitled to the protections of the 5th and 6th Amendments, as those amendments then were interpreted by the Courts. "We must conclude," the Quirin court held, "that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commissions, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts."
This passage from Quirin almost certainly will be "Exhibit A" for the government as it tries to make the case to a modern-day Court that not only are military tribunals legal, their mechanics also are beyond the reach of both the courts and Congress. And there is much merit to this argument. In fact, some legal scholars contend that the president could even have even applied his order to U.S. citizens. But it is worth noting that the Quirin court rendered its decision in very different legal times. Quirin came down during an era, for example, when "separate but equal" was still a constitutionally-permissible race policy and when internment camps for Japanese-Americans were deemed valid. It came down decades before the Warren and Burger Courts significantly expanded the individual rights of criminal defendants, expansions which even the greatly conservative Rehnquist court has not entirely rejected. The law and the Supreme Court today are both very different than they were in 1942.
Then there are other, more general questions. Can terrorists be tried as "war criminals" without a declaration of war? Can Congress now rectify the situation by expressly sanctioning the administration's position? Which "laws of war" would these tribunals follow? Would they follow international law as it relates to war crimes? Would they follow general federal criminal law? Or does the order give the secretary of defense the power to make up a whole new set of substantive rules?
These questions are valid ones that ought to be raised by someone before the matter gets resolved. And, of course, these questions are in some ways separate and apart from the policy issues involved in all of this. Even if we can use the tribunals, should we? Even if we wanted to streamline the process, couldn't we achieve those goals in our federal courtrooms the way we have for over 200 years? By treating these terrorists as adversaries in war, are we perhaps giving them an exalted status they do not deserve?
Amid these questions, one thing does appear certain: The federal courts likely will fast-track any legal challenge which arises out of the week's events.
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