Posted on 12/04/2001 10:39:31 AM PST by Pokey78
President Bush's order establishing military tribunals for noncitizen terrorist suspects is riddled with flaws. First, to justify the order, the president acts as though Congress has declared war, when all it has really done is authorize him to "use all necessary and appropriate force against those nations, organizations, or persons [involved in the September 11 attacks] ... to prevent any future [such] acts of international terrorism against the United States." Lacking the ritualistic solemnity of a declaration of war, that hasty authorization does not justify the same domestic deprivations that a formal declaration of war might--particularly since our enemy in this war is amorphous, and the war may never reach a decisive, public end. Second, the order's reach is so sweeping that it could ensnare not just terrorist leaders captured overseas, but any ordinary, lawful resident alien who may once have "knowingly harbored" a present or former member of Al Qaeda or who might be "believe[d]" to have "aided or abetted ... acts in preparation" for international terrorism. Third, the order provides no definition of "international terrorism"--and the definition of "terrorism" recently provided by Congress in the USA Patriot Act is broad enough to encompass, for instance, a doctor in the Netherlands prescribing lethal medication for a terminally ill Oregon patient to "influence the policy of" the attorney general regarding Oregon doctors by "intimidat[ing]" him into backing down. This is certainly not to suggest that Attorney General John Ashcroft would extend his personal war on physician-assisted suicide so far as to drag the Dutch doctor before a military tribunal. But therein lies the problem: Using so amorphous and elastic a term without pinning it down invites arbitrary and potentially discriminatory decisions of whom to submit to a military trial and whom to spare that burden. Fourth, the tribunal's jurisdiction extends beyond "violations of the laws of war" to encompass violations of all "other applicable laws," which in turn invites the use of military tribunals for ordinary state or federal crimes that bear no relation to the wartime rationale for circumventing the safeguards of the civilian courts. Fifth, the order gives the president and secretary of defense unbridled discretion to conduct all proceedings in complete secrecy, and to reach whatever "final decision" the president deems proper, perhaps even convicting and sentencing to death someone the tribunal has acquitted. And these are just the most obvious excesses.
But just because the order is flawed doesn't mean it can't be mended. The crucial question--given the many other steps the executive branch is taking that blur the boundary between making war and doing justice--is who can best repair it. The standard answer is the Supreme Court. Because they assume the Court should step in, critics worry that Bush's order appears to preclude judicial review, and thus may prevent the Court from playing its vital role in this drama. But that worry is misdirected; in fact, the order probably does allow judicial review. The problem is that the Court's review would likely be a rubber stamp. Historically, the judiciary has been so deferential to the executive in wartime as to provide virtually no meaningful check. That problem might be compounded this time by the fact that courts are necessarily limited to reviewing one challenged government measure at a time. As a result, they fall prey to the familiar tyranny of small decisions; they are institutionally unable to assess these measures' interlocking totality-- a totality that might entail far more profound compromises of constitutional principle than piecemeal judicial review can reveal. And, in blessing dubious executive wartime measures, the Supreme Court might actually make things worse--establishing precedents for even more frightening government actions in ordinary times.
That is why Congress must step in. The Constitution grants the legislative branch the responsibility to "declare war," "grant letters of marque and reprisal" (as in the $25 million reward for Osama bin Laden), "define and punish ... offenses against the law of nations," and make all other laws "necessary and proper" for executing any of the national government's enumerated powers. If Congress uses those prerogatives appropriately to trim the order's sails, then President Bush's extraordinary tribunals may be a permissible response to an extraordinary war.
Given common assumptions about the constitutional division of power, the federal judiciary might seem the logical place to check executive overreaching of the sort found in the president's order. After all, in analogous circumstances during World War II (Ex Parte Quirin) and as recently as this year (INS v. St. Cyr), the Court elbowed its way onto the doorstep of what the president declared unreviewable executive affairs--finding a hook for judicial review that the president and Congress thought they had precluded. But it would be a terrible mistake for those who worry about civil rights and liberties to pin too much hope on the judiciary in times of crisis. Even assuming general agreement in hindsight that a government practice violated the Constitution, the likelihood that the Supreme Court would say so in the face of strong opposition by Congress, the president, and a public caught in the fog of war is very low indeed. And the odds that judges will second-guess a determination by the nation's commander in chief that a given measure is truly demanded by military necessity are particularly slim.
The boldness with which a bare Court majority intervened in the recounting of Florida's ballots in the last presidential election--despite the Twelfth Amendment's allocation of the relevant decision (which electors to count) to Congress, and despite the absence of reason to doubt that Congress could have and would have done its job without the Court's help--has led some to assume that, in a genuine crisis, the Court would similarly seize the prerogative. But that assumption misreads the current Court. In Bush v. Gore, five of the justices displayed their disdain for the messy processes of democracy and their devotion to decorum and the appearance of order even in the inherently indecorous context of choosing a president. That is very different from the courage it would take to stand up to a president who claims, with an approval rating hovering around 90 percent, that he is acting to prevent another disaster. Indeed, Justice Antonin Scalia's famous worry about a "cloud" over the legitimacy of the Bush presidency suggests a judicial attitude that would be accepting rather than skeptical of the president's need to invoke the extraordinary powers of military tribunals.
In this regard, the current Court is no different from its predecessors, all of whom--when confronting the "blood-swollen god" of war--nearly always deferred to the president in trading liberty for security. According to the memoirs of Franklin Roosevelt's attorney general, some nasty behind-the-scenes arm-twisting by the executive may have spurred a unanimous Supreme Court in Ex Parte Quirin to approve military tribunals for citizens and noncitizens alike accused of wartime sabotage on American soil. And even without improper executive pressure, when thousands of anarchists, pacifists, and Communists were convicted and imprisoned for expressing their opposition to U.S. military policy during World War I, the Supreme Court consistently upheld their convictions. Those rulings diminished the force of the First Amendment for half a century, fulfilling Charles Dickens's prophecy that "traces of war and bloodshed will survive in mournful shapes long after those who worked the desolation are but atoms of earth themselves."
Not even after military hostilities have ceased has the Supreme Court been capable, despite its theoretical independence from public passions, of striking down such excesses as FDR's shameful internment of more than 70,000 American citizens of Japanese ancestry. On the contrary, in a series of now infamous decisions culminating in 1944 in Korematsu v. United States, the Court feared second-guessing the military and "availing [itself] of the calm perspective of hindsight." So it caved in to puffed-up claims of military necessity.
It would have been far better had the Supreme Court in these cases exercised what Alexander Bickel described as the "passive virtues" of ducking decision--by finding a matter nonjusticiable, or simply by declining discretionary review--rather than setting one unfortunate precedent after another, each lying about, as Justice Robert Jackson wrote in his Korematsu dissent, "like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need." Noting that a "military order, however unconstitutional, is not apt to last longer than the military emergency," Justice Jackson argued that, even if courts should not actively interfere with a military order that strains the Constitution but whose necessity no court can properly second-guess, they should refrain from upholding any such order. For "once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, ... [a] passing incident becomes" a constitutional doctrine with "a generative power of its own."
That is the danger again today. The current Court seems insufficiently modest to worry that circumstances might lead it to distort enduring constitutional principles. And that makes it all the more essential for Congress to play an active role--more active and thoughtful, certainly, than the role it played in essentially rubber-stamping without even fully reading the sweeping USA Patriot Act in October--by curtailing the military tribunal order's clear excesses. In fact, it is only Congress, through its powers of investigation, that can turn a spotlight on just what the administration is doing to the many people it has detained and interrogated in secret, in anticipation of the excessive secrecy of the tribunals themselves. Only Congress can expose the racial profiling that appears, despite repeated administration denials, to be at play in the interrogation of some 5,000 Middle Eastern immigrants. Only Congress can investigate the array of other apparent incursions on traditional liberties and privileges (such as attorney-client confidentiality) that Attorney General Ashcroft has instituted. Above all, only Congress can determine whether the totality of the executive branch's domestic anti-terrorism program--which no court could ever assess in one individual case and which might more severely distort basic constitutional principles than we could surmise by simply adding its separate parts--ultimately crosses the line of what the Constitution permits. And only Congress, through its appropriations and lawmaking powers, can set different and more fitting parameters and procedures for the military tribunals and for the web of related institutions and practices--all of those strictures, of course, being subject to judicial review to ensure that Congress does not exceed its constitutionally enumerated powers.
That said, there remains the fundamental question of whether the core of the executive order, its gratuitous branches pruned, is consistent with the Constitution. I think it may well be. We are engaged in a real war, not a metaphorical one akin to the "wars" on drugs or poverty. And terrorist attacks of the sort launched on September 11 differ from "ordinary" mass murders of as many innocents in that they target Americans and their allies simply for who they are: citizens of nations that do not accept the terrorists' twisted views. Just as Kristallnacht represented terrorism against the Jews of Germany and not simply the breaking of Jewish shopkeepers' windows, and just as the lynching of African Americans is a form of terrorism beyond the sum total of the individuals killed, so targeting Americans for murder throughout the world is more than mere crime. It is war, and the Constitution cannot prevent its treatment as such.
In wartime, "due process of law," both linguistically and historically, permits trying unlawful combatants for violation of the laws of war, without a jury or many of the other safeguards of the Bill of Rights--provided the trials are conducted by tribunals impartial enough to render fair verdicts, and provided each accused may hear the case against him and receives a fair opportunity to contest it through competent counsel. Against this proposition, critics note that aliens in the United States, even enemy aliens, are "persons" protected by due process. True enough, but that just begs the question of what process is "due" under the circumstances.
It is said that martial law and military tribunals have been held unconstitutional for civilians residing in the United States so long as the civil courts were open (in Ex Parte Milligan in 1866 and 80 years later in Duncan v. Kahanamoku). But those cases involved either gardenvariety offenses like assault or embezzlement, or activities wholly unconnected with any armed attack or rebellion against the United States.
It is said that military tribunals will be biased against anyone accused by the president or secretary of defense. But wouldn't any civilian jury be just as biased? Wouldn't even Supreme Court justices themselves--exposed to the possible effects of terrorism when they had to vacate their historic quarters because of an anthrax scare--be less than perfectly impartial? We consider military tribunals sufficiently impartial to judge our own military personnel accused of crime. Why should members of Al Qaeda and those who aid them enjoy a constitutional right to a theoretically purer form of justice than our own soldiers?
It is said that military tribunals, by not requiring unanimity or proof beyond a reasonable doubt, would deprive those subject to them of liberty, and perhaps even life, without due process of law. But due process requires such safeguards, the Supreme Court has held for at least two decades, only when "it is much better for [the defendant] to go free" as a result of error than for the defendant to be erroneously detained. In the 1979 case establishing that principle, Addington v. Texas, the Court suggested that even a standard requiring the government to prove merely that its charges are probably correct would constitute due process when "the possible injury to the [accused] individual" is not "significantly greater than any possible harm to the state." The old adage that it is better to free 100 guilty men than to imprison one innocent describes a calculus that our Constitution--which is no suicide pact--does not impose on government when the 100 who are freed belong to terrorist cells that slaughter innocent civilians, and may well have access to chemical, biological, or nuclear weapons.
It is said that ordinary civilian trials--like those arising from the 1993 World Trade Center bombing, or proceedings in foreign or international tribunals like the trial under Scottish law of two Libyans accused of the 1988 bombing of Pan Am Flight 103--can preserve the secrecy of our intelligence sources and methods, and the anonymity of potentially endangered witnesses and jurors. Perhaps--but even if these other fora can be strained to accommodate the pressing need for occasional secrecy, it does not follow that they are best-suited for the task. And such nonmilitary trials grant an extended pulpit to an accused bent on claiming martyrdom and capable of stirring others to further acts of international terror.
Finally, it is said that using ordinary civilian tribunals, instead of those the president has proposed, would enable us to put our system of justice on global display and to demonstrate, by conforming our deeds to our words, the long-held attachment to a philosophy of universal law that marks the great divide between our enemies and ourselves. Military tribunals might thus sacrifice a potentially crucial chance to score a victory in the propaganda war, and to overcome the resistance of nations like Spain that will not extradite suspects unless they are tried in civilian courts (and not subject to the death penalty). These are real benefits, and there are others as well--and Congress should consider them. But that doesn't mean the Constitution makes civilian courts mandatory in this wartime context.
In sum, President Bush's order establishing military tribunals goes too far. It should be cut back by Congress, which must not pass the buck to a Supreme Court that is unlikely, if history is our guide, to vindicate constitutional principles in this setting. But this is not to suggest that those tribunals, at their core, offend any fundamental constitutional precept. Congress, and all of us as citizens, must try to view such tribunals, and each related measure the government takes, in their totality--lest by imperceptible steps we gradually make ourselves into an alarmingly different kind of society. But as we resist measures that make us no better than those we seek to disarm and defeat, we must not bind ourselves too tightly to a mast suited only for navigating peaceful seas.
LAURENCE H. TRIBE is the Tyler professor of constitutional law at Harvard.
Sounds like Congress just gave him the authority to me!
1. Tribe d*mned well knows, because he quotes from the document, that Congress authorized "war powers" to the President on 18 September, under the provisions of the War Powers Act. Now, if Tribe wants to argue that the WPA itself should be declared unconstitutional, I'd agree with him on that. But he lacks the integrity to mention the WPA.
2. Congress already HAS acted on the subject of military trials. They passed a law in 1806 to give that power to President Jefferson. Since then, Presidents Lincoln, Roosevelt II, and Bosh have used that power. Could Tribe possibly be unaware of this law? See next item.
3. The Supreme Court already HAS acted. in 1942 it upheld Roosevelt's Order for military trials for those accused of "war crimes." It also noted that the 1806 law was still on the books. For a Professor of Constitutional Law not to be aware of a unanimous, 8-0, decision of the US Supreme Court is like a dentist not knowing what a toothbrush is. Tribe CANNOT possibly be that stupid. I conclude that he IS that dishonest.
I've gone up against Tribe twice. Both times, I was right and he was wrong. Both times, my position prevailed in the Supreme Court. He pretends to know the law, but when the rubber hits the road, he's a liar and a blowhard.
Congressman Billybob
Here is a sample from his page: "I love brilliant magenta sunsets, unagi, Martin Amis' "Time's Arrow," the fish tank at MGH, T.S. Eliot's "Love Song of J. Alfred Prufrock," eating, my stairmaster, looking at the ocean, dreaming about impossible things, New Yorker cartoons, the twist in a short story"
And you get some idea of why he took it down. It's a MUST SEE!!
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