Not on Our Soil

January 25, 2002 • Commentary
This article, first published in National Review Online on January 25, 2002, is an expanded version of the author’s remarks before a Federalist Society conference on

The first cabal of al Qaeda prisoners could have been brought here for trial. Instead, they were taken to Guantanamo, where they’ll probably be tried by military tribunal — outside the United States. Meanwhile, Zacarias Moussaoui, the Moroccan would‐​be pilot, also qualified for trial by military tribunal — perhaps in Minnesota, where he was arrested. Instead, he’s making his case before a civilian jury in a Virginia federal court. Then there’s Richard Reid, the British citizen of shoe‐​bomb fame. He too could have been tried by military tribunal — maybe in Massachusetts, where his American Airlines plane landed. Instead, he’s been indicted by a federal court there.

That’s all good news, which responds to criticism leveled by civil libertarians. Plain and simple, military tribunals have no business on U.S. soil. So far, President Bush seems to agree. He should say so, unequivocally and soon. Here’s why.

The Fifth and Sixth Amendments to the U.S. Constitution ensure due process and a speedy and public jury trial. Those protections apply to “persons,” not just U.S. citizens. No responsible authority argues otherwise. When the Framers wanted to say citizens, they said citizens. And when they said persons, that’s what they meant. This past term, in Zadvydas v. Davis, the Supreme Court reaffirmed the general rule that immigrants — even those here illegally or temporarily — are entitled to the same due process as citizens.

So here is the threshold question for anyone who wants to use military tribunals in the United States to prosecute non‐​citizens suspected of international terrorism: Are the Fifth and Sixth Amendments available to all defendants, including international terrorists? Or are there special rules for terrorists? Let’s assume, first, that the Bill of Rights applies across the board. If so, the Bush military order on tribunals is unconstitutional. To the extent that the order permits, as it does, prosecution of non‐​citizens who are arrested or tried here, or who reside here, it denies those persons their constitutionally guaranteed rights. And that’s no small matter. There are 18 million non‐​citizens in the United States; the vast majority of them are here legally.

That’s not to say tribunals are improper for prosecuting non‐​citizens apprehended overseas. Those persons are not entitled to constitutional protection, and tribunals are a legitimate venue to try, convict, and punish them. But for persons residing in the United States, constitutional rights cannot be so casually discarded. And when Attorney General Ashcroft suggests that resident aliens can be treated differently, he is doing what he accuses his critics of doing — “pit[ting] Americans against immigrants, and citizens against non‐​citizens.” That was not an off‐​the‐​cuff remark by Ashcroft; it was from his prepared testimony to Congress — the same testimony in which he referred to “phantoms of lost liberty,” as if denied Fifth and Sixth Amendment rights were not real lost liberty.

Yes, the Supreme Court said in 1942 that it was okay to use military tribunals in the United States, even to try citizens, if they are suspected of being unlawful combatants. That was the holding in Ex parte Quirin. Eight Nazi saboteurs, at least one of whom was a U.S. citizen, were captured in the United States, and were tried and convicted here before a tribunal. Six of the eight were executed. Before their execution, the Supreme Court affirmed that violations of the laws of war by unlawful combatants are not the kind of offenses, rooted in the common law, that are covered by the Fifth and Sixth Amendments. Instead, the international laws of war apply and military tribunals have jurisdiction.

Some have argued that Quirin was wrongly decided. After all, nothing in the text of the Constitution suggests a separate category of offenses to which the Bill of Rights does not apply. Indeed, the Fifth Amendment accords special treatment to cases involving our armed‐​forces personnel in time of war. But it says nothing about enemy belligerents residing in the U.S. The Quirin Court explained that alien spies had been tried by military tribunal, both before and shortly after ratification of the Fifth and Sixth Amendments. Yet in 1866 (Ex parte Milligan), the Court ruled that tribunals could be used only if the civil courts were “actually closed.” Unlike Milligan, which involved a civilian defendant, Quirin involved unlawful combatants, but that distinction is also nowhere to be found in the Constitution.

To be sure, emergency circumstances sometimes require emergency solutions. Still, the Constitution applies in both peace and war. The Framers contemplated emergencies: Article I, section 9 allows suspension of habeas corpus in cases of rebellion or invasion. Article I, section 10 allows a state, without the consent of Congress, to engage in war if it’s “invaded, or in such imminent Danger as will not admit of delay.” The Framers could have provided for other emergency powers; but they did not.

No matter, let’s assume that Quirin is correct. That means unlawful combatants, including those captured here, may be tried by a military tribunal under certain conditions. What are those conditions? And do they comport with the Bush military order? First, says Quirin, a presidential proclamation authorizing military tribunals “does not bar accused persons from access to the civil courts for the purpose of determining the applicability of the Proclamation to the particular case.” Compare the words of the Bush military order: A detainee “shall not be privileged to seek any remedy … directly or indirectly … in any court of the United States.”

Not to worry, says the administration. Individuals tried within the United States can exercise their right of habeas corpus to challenge, in court, the threshold question of whether they are persons subject to a military tribunal. Maybe so. But that’s not the only purpose of a habeas petition. The Quirin Court also held that a presidential order, even one which, like the Bush order, expressly denies a judicial remedy, cannot prevent defendants from contending “that the Constitution and laws of the United States forbid their trial by military commission.” That’s not merely a question of jurisdiction. It is a question of constitutional authority and executive power. The Bush military order, in denying a civil judicial remedy, has violated the Quirin mandate.

Second, says Quirin, Congress formally declared war against Germany. And articles of war “explicitly provided … that military tribunals shall have jurisdiction to try offenses against the law of war.” By contrast, the entire Bush scheme was concocted without congressional input. President Bush invoked his authority as commander‐​in‐​chief to establish the new tribunals. But that authority, at best, is shared with the legislative branch. Congress, not the president, is empowered by Article I, section 8 to “constitute Tribunals inferior to the supreme Court,” “define and punish … Offenses against the Law of Nations,” “make Rules concerning Captures on Land and Water,” and “make Rules for the Government and Regulation of the land and naval Forces.”

The administration responds that Congress has spoken. On September 14, the Senate and House overwhelmingly passed a resolution authorizing action against persons that “planned, authorized, committed or aided” the terrorist attacks of September 11. True enough, but the resolution had nothing to say about tribunals. It sanctioned the use of force, not the procedures for convicting enemy belligerents. Furthermore, the September 14 resolution, unlike the Bush order, relates only to persons involved in the acts of September 11. The reach of the Bush order — i.e., anyone involved with international terrorism — cannot be squared with Congress’ resolution.

Despite all that, let’s make another heroic assumption. Let’s say we do not need a formal declaration, or even express legislative authority, for military tribunals. All that matters is objective reality: We are in a state of war. Congress’s resolution is good enough. Ergo, according to Quirin, military tribunals may try offenses against the law of war by unlawful combatants, even here in the United States. But who are those unlawful combatants? That term of art describes enemy belligerents who do not have uniforms or other insignia of a command structure, do not openly possess weapons, and will not themselves commit to abide by the law of war. Terrorist groups like al Qaeda surely qualify. The Taliban may not.

The scope of the Bush military order is substantially more elastic. Bush tribunals apply not only to al Qaeda but to any non‐​citizen that Bush has “reason to believe” has “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore” — or anyone who has knowingly harbored such a person. We do not know how direct the involvement with terrorists must be, where it occurred, when it occurred, or against whom it occurred. We do not even have a definition of international terrorism. Conceivably, a drug dealer who unwittingly supplied a terrorist could be prosecuted by a military tribunal.

Here’s the argument in a nutshell. If the Bill of Rights applies to unlawful combatants in the United States, the Bush military order is unconstitutional. If the law of war is in force, then military tribunals in the United States must be, first, subject to civil judicial review; second, authorized by Congress; and third, limited to prosecuting unlawful combatants. In any event, the order as it now stands is illegitimate, and those of us who say so are not, in the attorney general’s unfortunate and offensive words, “giving ammunition to America’s enemies,” “aiding terrorists,” or “eroding our national unity.” Instead, we are upholding the Constitution; securing the values that sustain a free society; and, at the same time, preserving for the president the option of using military tribunals outside of the United States — where they belong.

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