Constitutional Law I
Military Tribunals
Sept. 1, 2004
Spring 2004
Types of military tribunals
Courts martial
War crimes tribunals
Military commissions

Historically used for "unlawful" combatants
Executive & Military Orders
Pursuant to President’s Art. II power


Power delegated by Congress
Core Art. II powers
 Commander in Chief
 Chief Executive (“he shall take Care that the
Laws be faithfully executed”)
Force of Law
Reviewable by federal courts
Military Order of Nov. 13, 2001
Note how these findings
Detention,resemble
Treatment,
and
Trial in
of Certain
those
found
Non-Citizens inlegislative
the War Against
Terrorism
acts
Findings
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

“it is necessary for individuals subject to this order ..
To be detained, and … tried … by military tribunals.”
“it is not practicable to apply in military commissions
under this order the principles of law and the rules of
evidence generally recognized in the trial of criminal
cases in the US district courts.”
“an extraordinary emergency exists for national
defense purposes, that this emergency constitutes an
urgent and compelling government interest …”
Who subject
Any person not a US Citizen whom
That the president (or delegate) has reason
to believe



Is a member of al Qaida,
Has committed or aided an act of int’l
terrorism, or
Has harbored any of the above
Detention
At an appropriate location
Treated humanely … in accordance with
such other conditions as SoD prescribes
Challenging Detentions
Habeas corpus clause, Art. I, § 9, cl. 2:

“The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may
require it.”
Habeas corpus statute, 28 U.S.C. § 2241

“(a) Writs of habeas corpus may be granted
by the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions.”
Challenging Detentions
Rasul v. Bush (2004)
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
“At its historical core, the writ of habeas corpus
has served as a means of reviewing the legality
of Executive detention, and it is in that context
that its protections have been strongest."
"Executive imprisonment has been considered
oppressive and lawless since [King] John, at
Runnymede, pledged that no free man should
be imprisoned, dispossessed, outlawed, or
exiled save by the judgment of his peers or by
the law of the land.”
Challenging Detentions
Rasul v. Bush (2004)
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
“Federal courts have jurisdiction to determine the
legality of the Executive's potentially indefinite
detention of individuals who claim to be wholly
innocent of wrongdoing.” Stevens
“The Commander in Chief and his subordinates
had every reason to expect that internment of
combatants at Guantanamo Bay would not [be
reviewable]… For this Court to create such a
monstrous scheme in time of war, and in
frustration of our military commanders … is
judicial adventurism of the worst sort.” Scalia
Challenging Detentions
Hamdi v. Rumsfeld (2004)

“An unchecked system of detention carries the
potential to beocme a means for oppression
and obuse of others…”
 Justice O’Connor (majority opinion)

“The Executive’s decision that a detention is
necessary to protect the public need not and
should not be subjected to judicial review.”
 Justice Thomas (dissent)
Link to SCt. briefs in Guantanamo cases
Amicus brief by Fred Korematsu
Interrogation
War Crimes Act (18 USC § 2441)

Prohibits commission of “war crime”
 defined as a grave breach in any of the international
White House Counsel
conventions signed at Geneva
12 August 1949
Memo on Geneva Conv.
Bush Memorandum (Feb. 7, 2002)
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“none of the provisions of Geneva [convention]
apply to our conflict with Al-Qaeda”
“I have authority under the Constitution to
suspend Geneva as between US and [Taliban]”
White House Counsel “Torture Memo” (Bybee)
DoD Working Group on Detainee Interrogations
Table of Approved Interrogation Techniques
Trial
By military commission [pursuant to]
orders and regulations issued by SoD
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Composition (3-7 military), venue and time
Admission of probative evidence "in a
manner consistent with the protection of
classified information“
 Some standard criminal procedures adopted

Conviction by 2/3 of commission
 proof “beyond a reasonable doubt”
Trial – Military Tribunal
Appeal and review

by SoD or President
 Upon recommendation by 3 officer review panel
Sentence

May include life imprisonment or death
Relation to Art. III courts
Military Tribunals are Art. II courts
No recourse to other courts

“the individual [tried] shall not be privileged to seek
any remedy or maintain any proceeding … in (i) any
court of the United States, (ii) any court of any
foreign nation, or (iii) any int'l tribunal.”
Agency Courts in general


Upheld against SoP claims because, in part,
decisions are reviewable by Art. III courts.
Ex. Bankruptcy, Immigration
Constitutional Issues
Structural – Separation of Powers

Does President “usurp” Art. III powers?
 Art. III, § 2, ¶ 1: “The judicial Power shall extend to
all Cases, in Law and Equity, arising under this
Constitution, the Laws of the US, and Treaties”

Does Military Order “obstruct” Art III functions?
 Preclusion of review by Art. III courts

Does Military Order “usurp” power of Congress
 Art. I, § 8, ¶ 11: “to declare war .. and make Rules
concerning Captures on Land and Water”
 ¶ 14: “to make rules for the Government and
Regulation of the land and naval Forces”
Constitutional Issues
Substantive – Criminal Procedure Rights

5th Amendment –
 “No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia”
 “nor be deprived of life, liberty, or property, without
due process of law”

6th Amendment –
 “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury”
United States ex rel. Quirin (1942)
German sabateurs tried by military court

appointed by President
 created & rules prescribed by Executive Order
 judicial review prohibited
 convicted by military court of violating the law
of war (int’l law) and Articles of War (domestic)
 Sabotage and espionage
 E.g., failure to wear
“fixed and distinctive
emblems”?
 Apply to Taliban? AlQaeda?
Ex parte Quirin
Can USSC even hear the case?

Court always has jurisdiction to determine
its jurisdiction
 If Order of July 2, 1942 (or Nov. 13, 2001)
precluding judicial review were unconstitutional,
the Court would have power to invalidate it
 Compare Ex Parte McCardle
Ex parte Quirin
Congressional Authorization

Do the Articles of War authorize military courts?
 Article 12 – makes triable by general court-martial
"any other person who by the law of war is subject to
trial by military tribunals."
 Article 15 – “The Articles shall not be construed as
depriving military commissions . . . of concurrent
jurisdiction in respect of offenders or offenses that by
statute or by the law of war may be triable by such
military commissions.“

Does the Law of War (incorporated by statutory
reference) authorize military tribunals?
Ex parte Quirin
Congressional Authorization

Lawful vs. unlawful combatants
 Article 82 – “Any person who in time of war shall be found
lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the
armies of the United States, or elsewhere, shall be tried by
a general court martial or by a military commission, and
shall, on conviction thereof, suffer death.”

J. Stone in Quirin:
 “Congress has explicitly provided, so far as it may
constitutionally do so, that military tribunals shall have
jurisdiction to try offenders or offenses against the law of
war in appropriate cases”
Military Commissions
Constitutional Issues

Due Process

Ex parte Milligan: (armed
uprising during Civil War)
J. Davis: “Martial law … destroys
every guarantee of the
Constitution … Civil liberty and
this kind of martial law cannot
endure together; the antagonism
is irreconcilable; and, in the
conflict, one or the other must
perish.”

No military trials of citizens, at
least if civilian courts are open
Military Commissions
Constitutional Issues

Due Process
 Declaration
of independence: causes for
separation 
King George III has “affected to render the
Military independent of and superior to the
Civil Power.”
 “depriving us, in many Cases, of the Benefits
of Trial by Jury”
Military Commissions
Constitutional Issues

Due Process
 Do military tribunals satisfy 5th, 6th, 14th amend’s?
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Conviction by 2/3 vote of judges
Open or closed proceedings
Review by President pursuant to pardon power
Writ of habeas corpus suspended
Military Commissions
Constitutional Issues

Due Process
 Do military tribunals satisfy 5th, 6th, 14th amend’s?
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According to J. Stone, the right to trial by jury (see also Art.
III, § 3) adheres only in “those cases in which it had been
recognized by the common law.”
What theory of interpretation does J. Stone use here?
Citizens as Enemy Combatants
Any difference as far as Bill of Rights?

Stone – "We cannot say that Congress in
preparing the 5th and 6th Amendments
intended to extend trial by jury to the cases
of alien or citizen offenders against the law
of war otherwise triable by military
commission"
Is this still good law?
United States ex rel. Quirin (1942)
 Convictions upheld for violating the law
of war
 affirmed by per curiam immed. after arg
 opinion issued 2 months after execution
More on the Quirin Case