CARELESS WITH THE CONSTITUTION?
The Problem With Military Tribunals

By JOEL B. GROSSMAN

Thursday, Nov. 29, 2001

Rights are always at risk in wartime. Perhaps it is an exaggeration to claim that "inter arma silent leges" (during war law is silent), but in times of national emergency law often takes a back seat.

Our Constitution makes no formal provision for emergencies other than to permit Congress to suspend the writ of habeas corpus. Nevertheless, the Supreme Court has fashioned a shifting, accordion-like set of doctrines that effectively permit the use of emergency powers while formally denying or obscuring their source and existence. Now, as the president proposes military tribunals to deal with suspected foreign terrorists, the scope and legitimacy of these doctrines will once again be tested.

Emergency Power Questions as Nonjusticiable Political Questions?

"Emergencies do not create power," Chief Justice Hughes once wrote, "but may furnish the occasion for the exercise of power." The Supreme Court has often stretched the facts and the law in deference to executive and/or congressional determinations of national security needs.

Moreover, although the Court has sometimes criticized emergency actions, it has done so only belatedly, so that its high sounding rhetoric often serves as little more than a footnote to the more enduring precedents of wartime success. If the Court is unwilling to defend the law and constitutional rights in times of emergency, whom can we expect to do so?

Perhaps we would be better off, as Justice Robert Jackson suggested in dissent in the Korematsu case, in which the Court upheld the internment of Japanese-American citizens during World War II, if the Court stopped trying to provide strained legal cover for constitutionally suspect executive actions and simply stepped out of the way by holding that unpalatable executive determinations of military necessity were nonjusticiable political questions. (The discretionary "political questions" doctrine may be invoked by the Court to avoid deciding issues it believes are constitutionally committed to a coordinate branch of government, or which, in reality, are "too hot to handle.")

If Jackson's suggestion was followed, individual rights would be abridged or compromised in many cases, as they were in Korematsu. Bad things would thus be allowed to happen, but it would be the president, and not the Supreme Court, who would be held accountable. Individual rights would be abridged or compromised, as Jackson believed was the case in Korematsu. But at least the long-term corruption of law and the Constitution--an arguably greater evil--would not be one of them. And the president would have the discretion he needed to wage war effectively. Although this strategy might seem like an unprincipled trade-off to many, it may be preferable to the alternative, expressed by Justice Felix Frankfurter, that the Court simply find an appropriate and available constitutional doctrine to support the president.

A Constitutional Crisis in the Making?

The Bush-Ashcroft strategy for identifying, apprehending, and punishing terrorists and those who have aided them seems almost designed to produce another constitutional crisis. The Administration has held secret detention hearings, wiretapped detainees' conversations with their lawyers, if they were given lawyers at all, and limited detainees' access to the evidence or charges against them.

All of these measures violate our basic legal principles. Pointing out that they would apply mostly to noncitizens is no answer. Treating citizens and noncitizens in such dramatically disparate ways undercuts our tradition of treating all persons equally before the law.

Yet these measures seem almost inoffensive in contrast to the most recent proposal to create military tribunals to "try" any noncitizen suspected of terrorist activity under the laws of war. These secret tribunals would not operate merely against battlefield combatants, where a plausible justification could be made. They would also be used to try civilians in the United States itself, where the federal district courts are open and operating.

The Administration is obviously unwilling to take any chances with the very legal system it has sworn to defend; it seems to think that abandoning the "rule of law" is the best way to defend that time honored aspiration. The Department of Justice motto that "The Government wins when justice is done" seems to have been replaced by "The Government wins when convictions are certain."     

Worse, according to the Executive Order, determinations of guilt or innocence will not be governed by the requirement of unanimity. Rather, a two-thirds vote of a panel of officers, selected from within the chain of command, will determine guilt as well as punishment, including the death penalty.

There may be a distinction between "military tribunals" and "courts," as the Supreme Court once said, but whether it is still a constitutionally tenable distinction remains to be seen. As envisioned by the Bush Administration, these "terrorist courts, which, after all, are not dealing with terrorists but with suspects collected in a dragnet--some of whom may well be innocent--might be more accurately labeled "in terrorem courts."

Their real purpose is not to adjudicate, but to intimidate, elicit information, induce pleas, and legitimate punishments against persons already identified as guilty by the president. They cast a frightening shadow.

The ends don't always justify the means. As ghastly as the events of September 11th were, and as important as the war to eradicate terrorism is, our constitutional traditions also need protection. Eugene McCarthy once said, mocking Richard Nixon, that "when the tough get going the going really gets tough." As a by-product of efforts to toughen national security to protect the nation from the menace of terrorists, the constitutional way is getting very tough indeed.

Furthermore, our credibility as a world leader is also threatened. When other nations follow Spain and other European Union nations, and refuse to extradite suspected terrorists to our military tribunals because of their suspect procedures, the embarrassment will be acute.

What is the benefit of creating "victims" out of terrorists? And what will we say to those who note the contrast between these secret tribunals and our long history of complaining about secret tribunals in China and other countries?

The President's "Commander-in-Chief" Status Does Not Authorize the Tribunals

There are several reasons why the plan for military tribunals is more than merely "careless with the Constitution." The preamble to President Bush's executive order reveals some very dubious claims that executive authority, either alone, or pursuant to acts of Congress, allows the creation of these tribunals.

In fact, neither the President's Commander-in-Chief status, nor whatever inherent powers the Constitution allows him, nor any act of Congress, has properly authorized these tribunals. (Indeed, the President would have done better, frankly, simply to cite the Constitution's "war powers" as an all-purpose and often creative source of executive authority.)

To the extent that the Executive Order appears to claim that the President can take this action unilaterally, pursuant to his authority as "commander-in-chief" of the armed forces, it is in very murky constitutional waters. Debates arising out of the Vietnam War, which led to passage of the War Powers Resolution, cast significant doubt on the argument that Article II and the commander-in-chief clause of the constitution alone authorize a president to act unilaterally in this way. That Resolution, and a number of Supreme Court decisions, while conceding that the president has some residuum of "inherent powers" to protect the national interest when not opposed by Congress, nevertheless reaffirmed that he is, and must be, a creature of the Constitution.

Congress' Resolution Does Not Authorize the Tribunals

The president is, of course, on stronger ground when he purports to be acting pursuant to an act of Congress. But here, what the executive order doesn't say is as important as what it does. The truth is that Congress has not been consulted about the tribunals in particular; it has only weighed in on, and approved, the use of force, which is an entirely different matter.

As statutory authority the order cites the recently passed "Authorization for use of Military Force Joint Resolution." But that resolution doesn't come close to addressing the military tribunals issue.

There has been some debate as to whether that Resolution is the functional equivalent of a declaration of war, and if so, whether that provides the president with the authority he needs. But that debate is irrelevant. A declaration of war (which this may or may not be) does not, and cannot, create domestic power or alter the basic constitutional structure--such as the power to create domestically based tribunals to try residents or visitors to this country.

The Other Statutes Cited Also Do Not Authorize Military Tribunals

In addition to the resolution, the President cites two other statutes as justification for these tribunals, but neither provides adequate--indeed, any--authority since they are both about courts-martial jurisdiction.

The first statute, Section 821 of Title 10, plainly deals only with the jurisdiction of military commissions and similar tribunals as part of Congress' clear constitutional mandate to establish a system of military justice and rules to govern the armed forces. This statute is thus about offenses committed by members of the military, not about noncitizens alleged to be terrorists.

The second statute, Section 836 of Title 10, similarly, is not on point. Like Section 821 it deals with trials of military personnel. Moreover, it actually undermines the president's order by urging that military commissions and tribunals follow, as far as practicable, the procedures and rules of evidence in criminal cases in the federal courts (and, indeed, in most courts-martial as well)--the very rules and procedures that the tribunals created under the president's order would eliminate!

Granted, Section 836 also allows for the procedures and rules to be abridged if the president finds their application in a given situation "impracticable." The Executive Order does purport to make such a finding, but offers no evidence of this "impracticability." Trying terrorist combatants in Afghanistan with full judicial process, in the midst of a war, would be impracticable. Trying detainees in the United States is not.

"Verdicts" That Never Involve a Court, at Either the Trial or Appellate Level

Finally, to ensure that these military tribunals can operate as "efficiently" as possible, the order also gives them exclusive jurisdiction - that is, it purports to bar any remedy in any court of the United States, of a foreign nation, or in any international tribunal. But, can a president alone really prohibit the federal courts--including the Supreme Court--from considering habeas corpus petitions or appeals from convictions by these tribunals? Congress, which has the authority to regulate the jurisdiction of the federal courts, would have a better claim than the president to such authority, but it would still be a weak claim; and in any case it has not done so (yet).

At the very least, the federal courts should be able to hear habeas corpus petitions, and the Supreme Court should be able, if it wished under its discretionary appellate jurisdiction, to grant review and pass on the validity of these courts.

When (If At All), Should the Courts Get Involved?

Of course, the record suggests that even if the Supreme Court accepts jurisdiction, is not persuaded to invoke the political questions doctrine, and decides to review the work of these tribunals, it will do little practical good other than to delay the inevitable outcome. History tells us that the Court is more likely to defer meekly to executive determinations of military necessity, as it did in the World War II saboteur cases, or the Japanese-American detention cases, than to make a forceful and principled defense of constitutional rights.

But perhaps this assessment is unduly pessimistic. The saboteur cases involved German spies who were clearly combatants under the laws of war; and the Court was listening when FDR (following Lincoln's precedent) said that he wouldn't comply with a habeas corpus order no matter what the Court said. Furthermore the Court in 1942 in Ex Parte Quirin clearly distinguished those cases from situations in which a president might be acting on his own, without congressional authority--as is the case with the current Executive Order.

Furthermore, as a matter of principle, the Japanese-American cases, long regarded as America's greatest constitutional atrocity, ought not to be cited as precedent even though they have never been formally overruled. As a nation we have atoned for that terrible injustice with reparations payments, apologies by Congress and two different presidents (Ford and Reagan), and more recently statements of regret by the Supreme Court itself. We can only hope that it is a mistake we can learn from, and not repeat.        

Our national commitment to rights is much greater today than it was during World War II, and these rights ought to be more resistant to abridgement even in time of emergency. But national emergencies are our constitutional wild card. The record tells us that they often trump individual rights. War involves restrictions unacceptable in peacetime; some concessions to necessity may have to be (and have already been) made. But if these tribunals are not to be discarded entirely as unworthy of our constitutional democracy, as they should be, then at least they should be required to operate within sight of the rule of law!


Joel Grossman is professor of political science at Johns Hopkins University, and before that was for many years professor of political science and law at the University of Wisconsin-Madison. He writes and teaches about American constitutional law, comparative constitutional law, the American legal system, and other socio-legal subjects. Professor Grossman's email address is jbgrossm@jhunix.hcf.jhu.edu.

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