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Executive Summary #3es on Legal Issues

November 5, 2001

Executive Summary: Bringing Al-Qaeda to Justice: The Constitutionality of Trying Al-Qaeda Terrorists in the Military Justice System

By , and

The accompanying legal memorandum explores the question of whether it is constitutional to try members of the al-Qaeda terrorist network, who may have been involved in the September 11 attacks, under the U.S. military justice system rather than in federal district court. As many as 1,000 individuals have been detained by law enforcement authorities in this country in response to the attacks. Though many of these detainees may be released or deported, reports suggest that some were directly involved in the September 11 terrorist conspiracy. With respect to this last group, the United States may be forced to decide soon what charges to file against them and in what court system.

The Use of a Military Tribunal.
The use of the military justice system in wartime to try such terrorists offers the government several advantages. In particular, trials before military tribunals need not be open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of cases and avoiding the disclosure of highly sensitive information on intelligence sources and methods.

Constitutional rules limit what can be done to protect classified information during trials in the ordinary federal courts. In the federal district courts, the government has an obligation under Article III and the Sixth Amendment to conduct a "public trial" and present to the jury, in open court, the facts on which it is relying to establish a defendant's guilt.

Pursuant to Article I, § 8, Clause 14 of the U.S. Constitution, Congress is authorized to establish a military justice system distinct from that created under Article III. In the Uniform Code of Military Justice (UCMJ), Congress created a three-tier court system to try the thousands of cases that involve military personnel. The UCMJ also authorizes the President to constitute special military "commissions" to try important cases that are not within the jurisdiction of normal courts martial. Under the UCMJ, the accused enjoy extensive due process protections, but their rights are not coextensive with the protections civilians enjoy in normal criminal trials.

Under the governing statute, it is possible for the President to incorporate all or most of the UCMJ's due process protections into any specially constituted military commission. Nevertheless, al-Qaeda defendants would likely still object to the jurisdiction of a military tribunal and the unique charges that can be brought there. In essence, they would argue that--according to our Constitution--the justice system that is good enough for U.S. military personnel (which exceeds the due process protections of almost every other nation) is not good enough for them.

Such is our love of liberty that their invocation of the U.S. Constitution would be taken seriously; and as a result, the constitutional basis for the use of military commissions to try members of al-Qaeda must be carefully considered. The use of military commissions with respect to individuals not regularly enrolled in a military force represents a clear departure from normal legal processes and some of America's most fundamental judicial traditions. In addition to the legal issues, there might be diplomatic difficulties and other costs associated with trying al-Qaeda terrorists by military tribunal.

The accompanying legal memorandum is not intended to present an argument for or against the use of such tribunals, but instead to present an analysis of whether that option is legally available to the President. In the end, only the President would possess the necessary information to weigh the potential intelligence and other risks of a long public trial against the foreign policy or other potential harms of a military trial.

Conclusion.
As Chief Justice William Rehnquist recently observed: "In wartime, reason and history both suggest that th[e] balance [between freedom and order] shifts in favor of ... the government's ability to deal with conditions that threaten the national well-being." Even so, limiting the due process rights of individuals accused of capital crimes is a serious measure the Supreme Court has approved in only very limited circumstances. The two Supreme Court cases that have directly addressed the use of military tribunals to try civilians in the United States reached different results and remain in tension with one another to this day.

The only case in which the Supreme Court explicitly upheld the constitutionality of using military tribunals in America to try individuals who were not in the military, Ex parte Quirin, was decided in 1942. At that time, the United States was engaged in a formally declared war. The persons who were tried, who entered the country clandestinely, were declared to be "illegal combatants" in the war. To date, Congress has not declared war with respect to the armed conflict between the United States and al-Qaeda or its primary state sponsor, Afghanistan's Taliban. If Congress does declare war, we concur with the conclusion in this memorandum that the Supreme Court would uphold the military trial of saboteurs and spies, like those in Quirin, who violate the laws of war on behalf of a hostile foreign power.

Whether individuals associated with al-Qaeda can constitutionally be subjected to military trial in this country in the absence of a formally declared war is less clear. The Court would have to resolve whether we nevertheless are in a state of war for certain constitutional purposes, and if so, with whom we are at war. Based on the applicable law, a strong argument can be made that a formal declaration of war by Congress would be unnecessary because a "state of war" between the United States and Afghanistan nevertheless exists. Much of Quirin's reasoning does not turn on a formal declaration of war, and there are other historical precedents that would support the creation of military tribunals to try al-Qaeda terrorists.

At the same time, it has long been recognized that the authority of the government in time of an "undeclared" war is less expansive than that available during a declared war. In addition, the Supreme Court has been more protective of civil liberties in the past 50 years, and it is less likely to defer to the political branches in time of war or national emergency as it once did. Thus, historical examples from the 19th century and the Quirin decision may be of limited value today.

Reasonable scholars may disagree about the exact strength of the government's position absent a declaration of war. Nevertheless, we believe the accompanying memorandum is correct that, without a formal declaration, no one can predict with a high degree of certainty which way the High Court would rule. If the President wishes to remove serious legal doubt regarding the use of military tribunals, he should seek a formal declaration of war.

Edwin Meese III is the Chairman, and Todd Gaziano is the Director, of the Center for Legal and Judicial Studies at The Heritage Foundation.

Nothing written here is to be construed as legal advice on any matter, as an attempt to create an attorney-client relationship, or as an attempt to aid or hinder the passage of any matter pending before Congress.

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