The Constitutionality of Military Tribunals

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.