June 11, 2001

June 11, 2001 | News Releases on Legal Issues

Study Explores Whether Terrorists Can Be Tried in Military Court

WASHINGTON, Nov. 6, 2001-As many as 1,000 individuals suspected of terrorist ties remain incarcerated by U.S. law enforcement officials, and the Bush administration may have to decide soon what charges to file against those linked to the Sept. 11 attacks. But should the defendants in this case be tried in federal or military court?

A military court offers several advantages, a new Heritage Foundation paper says, including the ability to keep classified information from leaking to those who would plan a future attack. But it also raises some serious constitutional questions. The Supreme Court has long held that the government's authority is far less expansive in an "undeclared" war than in a declared one-and that in such situations military justice must be restricted to military personnel.

"If U.S. officials opt to try the defendants in a military court, the defendants are sure to object," says Todd Gaziano, director of Heritage's Center for Legal and Judicial Studies. "If Congress formally declares war, the legal authority is reasonably clear that saboteurs and spies can be tried in military court.

"But, short of a formal declaration of war, it's difficult to predict with much certainty how the Supreme Court would rule in the matter. If President Bush wants to remove legal doubt, he should seek an official declaration."

In support of this stance, the authors of the paper-David Rivkin, Lee Casey and Darin Bartram of the Washington-based law firm of Baker & Hostetler-highlight two Supreme Court cases, Ex parte Milligan (1866) and Ex parte Quirin (1942). In Milligan, the high court ruled that military justice "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed."

But in Quirin, the Court made an exception that allowed the government to try in a military court eight Nazis charged with acts of sabotage. The Nazis were classified as "belligerents" or "unlawful combatants" in a declared war-and therefore subject to trial in military court.

"It's possible the Court would consider the fact that we're in a state of war, declared or otherwise, with Afghanistan sufficient for them to approve the use of military courts to try those suspected of having ties to the al-Qaeda terrorist network," says Gaziano.

"But we also should keep in mind that the Court has become much more protective of civil rights and civil liberties in the last 50 years," he adds. "The mere existence of an armed conflict might not be enough to persuade the justices to issue another ruling like Quirin-which is why the Bush administration should take no chances and seek a formal declaration of war if it wants to pursue trials in military court."

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