Constitutional Law I
Military Tribunals
Jan. 22, 2004
Spring 2004
Types of military tribunals
Courts martial
War crimes tribunals
Military commissions
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Historically used for "unlawful" combatants
Executive & Military Orders
Pursuant to President’s Art. II power
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Power delegated by Congress
Core Art. II powers
 Commander in Chief
 Chief Executive (“he shall take Care that the
Laws be faithfully executed”)
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Inherent powers
Force of Law
Reviewable by federal courts
Military Order of Nov. 13, 2001
Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism
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
President (or delegate) has reason to
believe
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Is a member of al Qaida,
Has committed or aided an act of int’l
terrorism,
Has harbored any of the above
Detention
At an appropriate location
Treated humanely … in accordance with
such other conditions as SoD prescribes
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
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Conviction by 2/3 of commission
 proof “beyond a reasonable doubt”
Trial
Appeal and review
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by SoD or President
 Upon recommendation by 3 officer review panel
Sentence
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May include life imprisonment or death
Relation to Art. III courts
Military Tribunals are Art. II courts
No recourse to other courts
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“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
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Upheld against SoP claims because, in part,
decisions are reviewable by Art. III courts.
Ex. Bankruptcy, Immigration
Constitutional Issues
Substantive – Criminal Procedure Rights
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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”
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6th Amendment –
 “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury”
Constitutional Issues
Substantive – Criminal Procedure Rights
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Habeas Corpus
 Art. I, § 2, ¶ 1 – “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.”
Constitutional Issues
Structural – Separation of Powers
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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”
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Does Military Order obstruct Art. III functions?
 Preclusion of review by Art. III courts
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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”
Statutory Issues
Does Military Order of Nov. 13, 2001 conflict
with Cong’l Resolution or other statutes?
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Authorization for Use of Military Force
(9/18/01)
“Now, therefore, be it Resolved by the Senate and House of
Representatives of the United States of America in Congress
assembled …
“That the President is authorized to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the
US by such nations, organizations or persons.“
Statutory Issues
Does Military Order of Nov. 13, 2001 conflict
with Cong’l Resolution or other statutes?
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10 USC § 821.
“The provisions of this chapter conferring jurisdiction upon
courts-martial do not deprive military commissions, provost
courts, or other military tribunals of concurrent jurisdiction
with respect to offenders or offenses that by statute or by
the law of war may be tried by military commissions,
provost courts, or other military tribunals.”
United States ex rel. Quirin (1942)
German sabateurs tried by military court
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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”?
Ex parte Quirin
Can USSC even hear the case?
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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
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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.“
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Does the Law of War (incorporated by statutory
reference) authorize military tribunals?
Ex parte Quirin
Congressional Authorization
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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”
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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.”
Military Commissions
Constitutional Issues
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Due Process
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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.”
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No military trials of citizens, at
least if civilian courts are open
Military Commissions
Constitutional Issues
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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
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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
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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?
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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
Detention & Military Trial
Cases to watch
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Rasul v. Bush
 cert. granted on the following question "Whether
United States courts lack jurisdiction to consider
challenges to the legality of the detention of
foreign nationals captured abroad in connection
with hostilities and incarcerated at the
Guantanamo Bay Naval Base, Cuba."
 Link to SCt. briefs in Guantanamo cases
 Amicus brief by Fred Korematsu
Detention & Military Trial
Cases to watch
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Hamdi v. Rumsfeld
 Question presented: Does the Constitution permit
Executive officials to detain an American citizen
indefinitely in military custody in the United States,
hold him essentially incommunicado and deny him
access to counsel, with no opportunity to question
the factual basis for his detention before any
impartial tribunal, on the sole ground that he was
seized abroad in a theater of the War on Terrorism
and declared by the Executive to be an “enemy
combatant”?
 Link to Petition for Certiorari