November 5, 2001
By David B. Rivkin, Lee A. Casey and Darin R Bartram
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
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.
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.
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.
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.
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.
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
Edwin Meese III is the
Chairman, and Todd Gaziano is the
Director, of the Center for Legal and Judicial Studies at The
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.
Executive Summary: Bringing Al-Qaeda to Justice: The Constitutionality of Trying Al-Qaeda Terrorists in the Military Justice System
David B. Rivkin
Read More >>
Lee A. Casey
Darin R Bartram
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