Balkinization  

Saturday, July 16, 2005

The Constitutionality of Military Tribunals

JB

The D.C. Circuit held yesterday in Hamdan v. Rumsfeld that President Bush had authority to create military tribunals to try Salim Ahmed Hamdan, who was Osama Bin Laden's driver in Afghanistan between 1996 and 2001, and who the Administration claims was an active Al Qaeda operative.

From a constitutional perspective, the most important thing about the decision is its holding that Congress had authorized military tribunals. This result in itself is not surprising, because of the combination of the September 18, 2001 Authorization of the Use of Military Force, and provisions in the Uniform Code of Military Justice that seem to contemplate the creation of military commissions. One of these, 10 U.S.C. section 821, was the basis for the Supreme Court's decision in Ex Parte Quirin, which upheld the use of military tribunals to try Nazi saboteurs captured on American soil during World War II, including one saboteur, Haupt, who was an American citizen.

Nevertheless, the Hamdan case raises more questions than it answers. Just because Congress has authorized the President to create some military tribunals does not mean that it has authorized that all persons in military custody may be tried by these tribunals, nor does it establish that they may be tried for any and all charges.

President Bush's original executive order, issued on November 13, 2001, makes persons subject to trials by a military tribunal if the President determines that there is reason to believe that the individual is or was a member of the al Qaeda terrorist organization, "has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy," or has harbored such a person. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). Note that this Order does not define the term "acts of international terrorism." Obviously, the broader the term is defined, the more people could conceivably be swept up in the President's grasp. (For example, leaking the name of a CIA operative to the press could be an act of international terrorism, although one doubts this is what the Administration had in mind.)

On July 7, 2004, nine days after the Supreme Court's decision in Hamdi v. Rumsfeld, Deputy Secretary of Defense Paul Wolfowitz issued an Order creating military tribunals to review the status of detainees at the U.S. military base at Guantanamo Bay, Cuba. That order defined the term "enemy combatant" as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

The key constitutional problem is that both the President's original definition of persons subject to military tribunals and Wolfowitz's definition of enemy combatants subject to military tribunals are far broader than the definition of enemy combatants whose detention the Supreme Court claimed was authorized in its Hamdi Opinion. In Hamdi, Justice O'Connor's plurality opinion defined an enemy combatant as "an individual who . . . was 'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." Note that it is certainly possible that a different definition applies for enemy combatants the government may detain and enemy combatants the government has authority to try before military tribunals, but it is hard to see why the definition for those it may try should be broader than the definition for those it may detain, because in most cases it has to detain people before it can try them.

So the President's and Wolfowitz's defintions of who the tribunals apply to are far too broad given what the Supreme Court said Congress had authorized. It is likely that Hamdan himself would fall under the Supreme Court's narrower definition of enemy combatant, because the government claims that he worked for Osama Bin Laden in Afghanistan and trained at an Al Qaeda camp there. But there are many people who would not. In particular, Jose Padilla, who has been held in a military prison in South Carolina, does not fall under the narrower definition, and so there is still a very good argument that the President lacks authority to try him before a military commission.

Indeed, it is not at all clear that the President is constitutionally authorized to use military commissions against persons held at Guantanamo Bay if they were not part of or supporting forces hostile to the United States or its coalition partners in Afghanistan and fought against the United States there.

There are many other important issues in the Hamdan case, including the application of the Geneva Conventions, which I shall not address in this post. But the key point to take away is that even if the Supreme Court upholds the decision as to Hamdan himself, the decision does not and should not be interpreted to give the President a blank check to try anyone he wants in a military tribunal. The Administration and the D.C. Circuit claimed that the President is acting under Congress's authority. If so, we should take seriously the limited scope of that authorization.


Comments:

It seems to me that it is a conflict between Article I powers and Article III powers and I think Article III should prevail. Even if under the Geneva convention the prisoner is not entitled to POW status and may be tried as a criminal, he should be tried in an Article III court. The Constitutional precedent for military tribunals is actually very thin. It was justified in the Civil War because of a civil war in which the civil authority had broken down and the civilian courts could not be trusted to function properly. The WWII German saboteur cases extended it -- in my opinion wrongly -- to "unlawful combatants".

I have no trouble subjecting terrorists to the death penalty. But we have a very healthy and functional Article III judicial system capable of doing the job. We do not need military tribunals.
 

Howard, I'm not sure that Padilla can be tried by a court martial, at least as I read Hamdi. You correctly point out that Bush's current executive order doesn't include citizens, but under Quirin he could surely change it if he wanted to.

The constitutional question is different: can the President try people in military tribunals in circumstances that Congress has not authorized? The Court in Hamdi deliberately read the Authorization of Military Force (AUMF) narrowly. It was not, as you suggest, simply to decide the case before it; but also to structure and limit Presidential power to detain and interrogate citizens free of the obligations of the Bill of Rights.

As I read the votes in Hamdi, Padilla, and Rasul, Padilla has a constitutional right to a hearing before an Article III court as to whether or not he is an enemy combatant who can even be detained by the President, much less tried by a military court. Whether he turns out to be a lawful or unlawful enemy combatant does not seem to me to be relevant to that constitutional question.

It is also possible that some of the people held at Guantanamo, who are not citizens, also cannot be detained under the current AUMF. Not surprisingly, the President wants to define enemy combatant as broadly as possible (again, the distinction between lawful and unlawful is beside the point for this purpose). But the key constitutional question is whether the President can define the term anyway he likes (see Wolfowitz's definition, for example) and claim that it is consistent with the AUMF. I don't believe that he can.
 

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A military tribunal is a kind of military court designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil matters. The judges are military officers and fulfill the role of jurors. It is distinct from the court martial. sportsbook, A military tribunal is an inquisitorial system based on charges brought by a military authority, prosecuted by a military authority, judged by military officers, and sentenced by military officers against a member of an adversarial force. http://www.enterbet.com
 

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