FC: ACLU letter to Congress on Bush military tribunal order

[Declan McCullagh <declan () well com>]

http://www.washingtonpost.com/wp-dyn/articles/A42164-2001Nov30.html

   William J. Haynes II, the Defense Department's general counsel, said
   yesterday his staff is still working to define the guidelines for how
   the military justice system would operate. Responding to criticism by
   some members of Congress and civil liberties groups that the tribunals
   would trample civil liberties, Haynes said he is confident that the
   tribunals would withstand court challenge. [...]
   
   White House counsel Alberto R. Gonzales gave the same assurance in
   remarks to a national security law conference sponsored by the
   American Bar Association.
   
   Gonzales said "we fully contemplate" that prisoners would be able to
   challenge their detentions, adding that critics who have claimed such
   trials would be kangaroo courts "insult our military justice system."
   
   "We fully contemplate habeas review will be available for any
   defendant with a U.S. nexus," he said. But, he added, terror suspects
   captured abroad would have no such right.

   [...]

---

http://www.aclu.org/congress/l112901a.html
                                      
   Thursday, November 29, 2001
   
   Re: President Bush's Order Establishing Military Tribunals 
   
   Dear Member of Congress:
   
   We are writing to ask you to exercise your oversight responsibilities
   and reclaim your proper constitutional role with regard to President
   Bush's "Military Order" of November 13, 2001, permitting the use of
   military tribunals against any non-citizen accused of terrorism.
   
   The Military Order applies to some 20 million non-citizens in the
   United States, most of whom are legal residents, and any other
   non-citizen anywhere else in the world, and could permit indefinite
   detention without trial in violation of a key detention compromise
   made in the USA Patriot Act. It could, at the stroke of a pen, be
   expanded to include United States citizens.
   
   These military tribunals will not observe the same procedures as
   ordinary courts-martial under the Uniform Code of Military Justice and
   do not contain the protections available in the ordinary military
   justice system. They could, at the discretion of the Pentagon, permit
   secret trials, permit conviction or even execution on only a
   two-thirds vote of military officers, require less than proof beyond a
   reasonable doubt, deprive a defendant of counsel of their own
   choosing, and do away with the presumption of innocence.
   
   These fundamental rights not only ensure a fair trial of the accused,
   but the safety of the public. They help ensure that the government
   convicts the guilty - and only the guilty - thus making sure that the
   actual perpetrators of terrorism are not still at large because an
   innocent person stripped of constitutional protection was wrongly
   convicted.
   
   While the ACLU does not believe that the use of military tribunals is
   unconstitutional in all circumstances, the ACLU strongly opposes the
   Military Order because:
   
     Unlike President Roosevelt's order permitting trial of spies and war
   criminals during World War II, the order was issued without
   Congressional authorization, as required by the Constitution, which
   gives Congress, not the President acting alone, the power "To define
   and punish . . . Offences against the Law of Nations."
   
     Regular courts have so far proven successful in prosecuting
   terrorism cases. Military tribunals should be authorized by Congress
   only if the regular courts cannot function in particular cases.
   
     Military tribunals, if authorized by Congress, may only be used
   constitutionally used against clearly identified "unlawful enemy
   belligerents," - a class far narrower than all persons accused of
   terrorism crimes -- and have normally been reserved for individuals
   captured in a zone of military operations.
   
     Military tribunals, if authorized by Congress, must comply with
   basic international and constitutional due process standards, which
   are not provided for by the order.
   
   The ACLU strongly urges Members of Congress to consider carefully the
   breadth of the Military Order, and to reclaim its constitutional power
   by deciding for itself under what circumstances, if any, military
   tribunals should be authorized in terrorism cases and to ensure that
   basic due process protections are preserved.
   
   More information is included in a memorandum attached to this letter,
   also available at http://www.aclu.org/safeandfree.
   
   Sincerely,
   
   Laura W. Murphy
   Director
   
   Timothy H. Edgar
   Legislative Counsel
   
---

http://www.aclu.org/congress/l112901b.html
                                      
                                MEMORANDUM 
                                      
   To: Interested Persons
   From: Timothy H. Edgar, Legislative Counsel
   Date: November 29, 2001
   Re: President Bush's Order Establishing Military Trials in Terrorism
   Cases
   
   On November 13, 2001, President Bush issued a "Military Order"
   providing for potentially indefinite detention of any non-citizen
   accused of terrorism, and permitting trial of such defendants in a
   military commission with a provision purporting to preclude all
   judicial review. Such military commissions would not follow the same
   process as courts-martial under the Uniform Code of Military Justice,
   and would afford few, if any, of the protections available in the
   ordinary military justice system.
   
   The order exceeds the President's constitutional authority. It was
   issued without any authorization by the Congress to establish such
   tribunals and without a formal declaration of war. It circumvents the
   basic statutory requirement - at the heart of the compromise on
   detention in the USA Patriot Act1 -- that non-citizens suspected of
   terrorism must be charged with a crime or immigration violation within
   seven days of being taken into custody, and that such detainees will
   have full access to the federal courts.
   
   The breadth of the President's order raises serious constitutional
   concerns. It permits the United States criminal justice system to be
   swept aside merely on the President's finding that he has "reason to
   believe" that a non-citizen may be involved in terrorism. It makes no
   difference whether those charged are captured abroad on the field of
   battle or at home by federal or state police. It makes no difference
   whether the individual is a visitor or a long-term legal resident.
   Finally while the order applies in terms only to non-citizens, the
   precedents on which the President relies make no such distinction,
   permitting the order to be extended to cover United States citizens at
   the stroke of a pen.
   
   The basic, fundamental rights guaranteed in United States courts and
   in ordinary courts-martial will not necessarily be afforded the
   defendants. The order purports to prevent review by any civilian court
   - including the Supreme Court of the United States - to ensure that
   even those rights ostensibly granted in the military proceeding are
   not violated. The rules and regulations that govern the tribunals are
   still being formulated. But, at the Pentagon's discretion, trials can
   be conducted in secret, and evidence can be introduced without the
   defendant being able to confront it. Only two thirds of the military
   officers on the tribunal's jury need find a defendant guilty, and the
   order provides for no meaningful appeal, even in cases involving the
   death penalty. Other basic rights remain unprotected. These rights
   seek to ensure that the government gets it right, punishing the guilty
   and permitting the innocent to be cleared.
   
   Yet there has been no showing that the order is necessary to advance
   justice or preserve national security. Civilian courts remain open and
   available to hear terrorism cases, and statutes and rules exist to
   safeguard classified information, ensure the safety of jurors and
   witnesses, and address other special concerns in terrorism trials.
   Military justice, while constitutional under certain circumstances
   which do not include all terrorism cases, is always a last resort.
   
   Finally, it is already plain that any verdict rendered by a secret
   military tribunal is likely to be regarded as illegitimate by a large
   portion of the world under international treaties to which the United
   States is a party. If Congress chooses to authorize the use of
   military tribunals in a narrow class of cases, such trials will still
   have to meet basic constitutional and international law standards.
   These standards have changed greatly since World War II and require
   basic due process for the accused. The procedures contemplated by the
   Military Order violate those standards.
   
   I. Congress Must Determine Whether and How To Establish Military
   Tribunals
   
   The President does not have unchecked war power by virtue of his
   authority as Commander-in-Chief. Rather, he shares these powers with
   Congress. In particular, the Constitution gives Congress, not the
   President, the power "To declare War" as well as the power "To define
   and punish . . . Offences against the Law of Nations." Art. I, § 8.
   
   Chief Justice John Marshall wrote plainly, "The whole powers of war
   being, by the constitution of the United States, vested in congress,
   the acts of that body can alone be resorted to as our guides in this
   inquiry." Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801). This is
   true whether Congress authorizes "general hostilities" by declaring
   war, or "partial hostilities" by authorizing the use of force in an
   military action short of war, as it has done here. Id.
   
   The Administration claims authority to establish military tribunals
   from the World War II-era precedent involving the trial of eight
   accused saboteurs, who landed on United States territory in 1942,
   shortly after the United States declared war on Germany. Their trial
   by military commission was upheld by the Supreme Court. Ex Parte
   Quirin, 317 U.S. 1 (1942). But President Roosevelt relied on the
   authority Congress had given him by its formal declaration of war. Id
   at 25-26. This authority, the Supreme Court held, gave military
   commissions the sanction of Congress, a sanction which lasted "from
   [war's] declaration until peace is declared." In re Yamashita, 327
   U.S. 1, 11-12 (1946). Roosevelt also relied on specific statutory
   authority permitting trials of enemy spies by military commission.2 >
   This authority has since been repealed.3 By contrast, President Bush
   acted without a declaration of war and without any express
   Congressional authorization establishing military tribunals. Indeed,
   he acted without even consulting Congress. President Bush cites two
   Congressional enactments as authority for his order. Neither
   authorizes the establishment of military tribunals.
   
   First, President Bush relies on Congress's authorization of the use of
   military force against those "nations, organizations or individuals"
   involved in the attacks on the World Trade Center and the Pentagon.
   See Pub. L. No. 107-40 (2001). But that resolution makes no mention
   whatsoever of the use of military tribunals to try terrorists, nor was
   this discussed during debate on the resolution. 4 Members of the House
   and Senate Judiciary Committees who voted for the resolution, of both
   parties, have expressed strong reservations about the President's
   unilateral decision, including Senator Arlen Specter (R-PA), Chairman
   Patrick Leahy (D-VT), Representative Bob Barr (R-GA) and Ranking
   Member John Conyers (D-MI). Furthermore, the President's order applies
   to anyone accused of terrorism, not just those involved in the attacks
   of September 11. The order therefore exceeds the scope of the military
   force resolution in any event.
   
   Second, President Bush relies on sections 821 and 836 of Title 10 of
   the United States Code. Neither section authorizes the President's
   action. Section 821 simply states that the extensive statutory
   provisions regarding courts-martial of members of the Armed Forces "do
   not deprive" other military tribunals, such as military commissions,
   of concurrent jurisdiction over offenders who "by statute or by the
   law of war" can be tried by such commissions. In other words, this
   section provides merely that if Congress authorized military
   tribunals, then they would not have to follow the same procedures as
   courts-martial. Likewise, section 836 give the President power to
   establish procedures for military tribunals, which, again, would be
   relevant only if Congress chooses once again to authorize them.5
   
   Finally, the President did not merely act in the absence of
   Congressional authorization, but deliberately flouted Congress's will.
   The Military Order permits indefinite detention of non-citizens
   suspected of terrorism with no provision for recourse to the courts, a
   power which the Administration had sought, but was denied, by the
   Congress in the USA Patriot Act. That Act requires that non-citizens
   suspected of terrorism be charged with a crime or grounds of removal
   from the country within seven days of being detained. USA Patriot Act,
   § 412, adding new INA § 236A. It expressly permits judicial review of
   the detention by habeas corpus, the ancient and
   constitutionally-protected remedy against unlawful executive
   detention. Id. The President's action thus is directly contrary to
   Congress's own considered view of the subject.
   
   In Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Supreme Court
   made clear that the President cannot, on his own, authorize detention
   without trial, saying only Congress had that power. While the justices
   were divided on when Congress could authorize military trials, even
   those who supported a broad view of the government's emergency
   detention powers agreed that when Congress put limits on those powers,
   the President was bound to respect them. See id. at 115; id. at 139-40
   (concurring opinion). Because Congress had expressly permitted
   detention without trial under certain circumstances - but not those
   involving Milligan's case - the President could not unilaterally
   expand those circumstances.
   
   Like the statute in Milligan, the USA Patriot Act expressly references
   the habeas corpus statute, 28 U.S.C. § 2241, and permits detention
   without charge for seven days - well beyond the presumptively
   constitutional 48-hour period. See County of Riverside v. McLaughlin,
   500 U.S. 44, 56 (1991). But Milligan plainly holds that where Congress
   never "contemplated that such person should be detained in custody
   beyond a certain fixed period, unless certain judicial proceedings . .
   . were commenced against him," id at 115, the President cannot evade
   those restrictions through the mechanism of a Military Order.
   
   II. The President's Order Sweeps Broadly, Stripping Away Basic Rights 
   
   The scope of the Military Order is breathtakingly broad, applying far
   beyond a narrow class of Al Qaeda leaders in Afghanistan. It applies
   to any individual whom the President determines he has "reason to
   believe" is (1) a member of Al Qaeda, (2) is in any way involved in
   "acts of international terrorism" -- a term which is not defined by
   the order -- or (3) has "knowingly harbored" either of the above. It
   applies retroactively and contains no time limit, allowing for such
   trials not only of conduct years ago, but long after the current
   crisis is over. Any one of the more than 20 million non-citizens in
   the United States, most of whom are legal residents, and anyone else
   in the rest of the world, could potentially face trial in a military
   tribunal.
   
   If the term "acts of international terrorism" is defined by reference
   to any of several definitions of terrorism in the United States Code,
   the universe of potential defendants could sweep in not only those who
   are directly involved in or knowingly support violent activity, but
   also many others on the basis of otherwise lawful, non-violent
   political activities and associations. For example, under the federal
   criminal code, material support of a terrorist organization,
   regardless of whether that support furthers terrorist activity, is
   defined as terrorism. 18 U.S.C. § 2339B. Supporting a school or day
   care center which is allegedly linked to a terrorist organization
   could thus be considered "acts of international terrorism" and subject
   a person to a military trial.
   
   While the order is limited to non-citizens, the Supreme Court
   reaffirmed just this summer that "the Due Process Clause applies to
   all 'persons' within the United States, including aliens, whether
   their presence here is lawful, unlawful, temporary, or permanent."
   Zadvydas v. Davis, 121 S. Ct. 2491, 2500 (2001) (emphasis supplied).
   Moreover, the constitutionality of trial by military commission is
   simply not based on the status of the offender as citizen or
   non-citizen. The order could easily be extended at the stroke of a pen
   to include United States citizens, who were tried before such
   commissions in the case of the saboteurs. In that case, the Supreme
   Court held that one saboteur's status as a United States citizen "does
   not relieve him" from trial before a military commission. Quirin, 317
   U.S. at 38. "[T]he offenders were outside the constitutional guaranty
   of trial by jury, not because they were aliens but only because they
   had violated the law of war by committing offenses constitutionally
   triable by military tribunal." Id. at 44 (emphasis supplied).6
   
   The Military Order contains only the barest of details concerning the
   conduct of military trials of terrorism suspects. The Order requires
   that prisoners be treated "humanely" and that they be given "a full
   and fair trial." Other than that, the procedures are left to be
   defined later, by the Secretary of Defense. Conspicuous by their
   absence are any of the basic guarantees that give life to the
   Constitution's demand that trials be fair. Indeed, there is an express
   Presidential "finding" that "it is not practicable to apply . . . the
   principles of law and the rules of evidence generally recognized in
   the trial of criminal cases in the United States district courts."
   This "finding" must be taken into account in the Secretary of
   Defense's regulations regarding trial by military commission.
   
   The procedures that are defined do not inspire confidence. A
   defendant's right to confront the evidence against him or her is
   ominously curtailed by provisions prohibiting the disclosure of
   classified information -- with no procedure for an adequate summary to
   take its place. The requirement of proof beyond a reasonable doubt is
   not guaranteed. The military tribunal is to try both facts and law,
   meaning that military officers - not Congress -- will determine what
   constitutes a violation of the (otherwise undefined) "law of war"
   permitting execution or other punishment. Coerced confessions may be
   admissible, along with evidence obtained illegally. The only express
   requirement is that evidence must have "probative value to a
   reasonable person." Defense counsel will be chosen by the United
   States military, not the accused.
   
   A two-thirds vote of military officers is required for conviction and
   sentence, which may include the death penalty. There is no direct
   appeal, except to the President himself or the Secretary of Defense as
   his designee - the very officials who determine there is "reason to
   believe" a defendant is a terrorist or harbors terrorists. The order
   also provides that the accused "shall not be privileged to seek any
   remedy or maintain any proceeding, directly or indirectly" in any
   court, whether federal, state, foreign or international.7
   
   Finally, the entire trial can take place in secret, without any
   accountability to Congress, the press or the American people. The
   order permits military commissions to sit "at any time and any place"
   and expressly authorizes "closure" of the proceedings to public
   scrutiny. If those rights that the Secretary of Defense chooses to
   confer on the accused are violated, the order not only makes no
   provision for the courts to stop it, but Congress, the press and
   public - key guarantors of our free society -- may not even know about
   it.
   
   III. There Has Been No Showing That the Regular Courts Are Inadequate
   to Hear Terrorism Cases
   
   United States courts have proven they can successfully try terrorism
   cases. This severely undercuts the argument for military tribunals.
   Military tribunals, other than ordinary courts-martial, are adopted as
   a last resort to ensure justice when the civil courts cannot function,
   not as a method of avoiding available forums for justice by
   undercutting basic constitutional rights.
   
   The Supreme Court has said that military tribunals are used against
   "certain classes of offense which in war would go unpunished in the
   absence of a provisional forum for the trial of the offenders." Madsen
   v. Kinsella, 343 U.S. 341, 348 n.8 (1952) (emphasis supplied). Even
   President Lincoln regarded military justice as permissible only if
   justified by military necessity, and refused demands to create
   military courts except where made necessary because of the inability
   of the regular courts to act.8
   
   Today, the regular criminal courts remain open to hear terrorism
   cases. Special statutes and rules exist to protect national security
   and to address other challenges of terrorism cases, such as preserving
   the safety of jurors and witnesses.9
   
   The Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3,
   was enacted precisely to avoid forcing the government to disclose
   essential intelligence information during discovery or forgo
   prosecution of terrorists, spies or other dangerous criminals. It
   successfully accommodates the government's need for secrecy with the
   fundamental imperative that an individual accused of crime must be
   able to confront the evidence against him and to challenge that
   evidence. It requires the government to provide the accused with an
   unclassifed summary of any classified evidence, which must be approved
   by a federal district judge as adequate to satisfy the standards of
   the statute and of the Constitution.
   
   Likewise, in prior terrorism cases, and other sensitive cases
   involving organized crime or international drug trafficking, the
   government has used special procedures to safeguard the identity of
   jurors and to ensure their safety. The federal witness protection
   program exists to protect witnesses from potential reprisal from
   terrorists or other criminals.
   
   Perhaps most importantly, the government has successfully prosecuted
   terrorists in the past. These include the trials of the original World
   Trade Center bombing conspirators, trial of conspirators in a foiled
   plot involving New York City tunnels, and the trial of those
   responsible for the bombings of United States embassies in Africa.
   Many of Al Qaeda's leaders are already under indictment, and are
   simply awaiting capture.
   
   While those who support military tribunals argue that none of these
   prosecutions actually succeeded in preventing the attacks of September
   11, that is not because previous defendants were acquitted. In fact,
   all such defendants have been convicted and sentenced to lengthy
   prison terms or death. The government cannot prevent attacks if it
   does not catch the perpetrators before the conspiracy is carried out,
   and the availability of a military court will do nothing to solve that
   problem.
   
   Some who support military tribunals have argued that regular criminal
   trials simply take too long and cost too much. In fact, however, there
   is no reason to believe that a fair military trial would necessarily
   take less time than a regular criminal trial. Trials of United States
   military personnel under the Uniform Code of Military Justice closely
   resemble many of the procedures used in criminal cases.10
   
   Nor would there be any appreciable cost savings, since the lion's
   share of the cost of trials is the cost of investigation. As one
   commentator notes, "Put simply, the crime must be solved" - and that
   is true regardless of which forum will try the perpetrators.11
   
   Punishment in civilian court can be both swift and severe. The Speedy
   Trial Act ensures that a criminal trial will not be subject to
   unreasonable delay. If the government shows accused terrorists pose a
   danger to the community, the Bail Reform Act permits pretrial
   detention, resulting in immediate incarceration of the accused.
   Finally, if the death penalty is sought, limits on death penalty
   appeals enacted in previous anti-terrorism legislation have greatly
   "streamlined" the death penalty appeals process, even at the expense
   of full and fair review of death sentences.12
   
   Put simply, Congress has enacted very serious penalties for terrorism
   crimes, up to and including the death penalty. Terrorists have been
   tried, convicted, sentenced to death, and executed in the regular
   criminal justice system. Existing statutes protect the government's
   interests in national security, in protecting witnesses and jurors, in
   securing the immediate detention of terrorist suspects, and other
   concerns said to require military tribunals. If the Administration
   needs additional safeguards in the regular criminal courts, it can ask
   Congress for them. And if the Administration identifies a limited
   class of cases which require the use of military tribunals, it can ask
   Congress to authorize them.
   
   Trial by a military tribunal will not necessarily result in swifter or
   surer punishment of the guilty - but, under the procedures permitted
   by the order, it does risk punishment of the innocent. Constitutional
   guarantees protect not only the rights of the innocent, but also the
   public safety because they help ensure that the government seeks
   conviction of the right people and if they are convicted, that they
   are actually guilty of the crimes charged.
   
   For example, the right to assistance of counsel of one's own choosing
   helps ensure that a person is adequately represented and that the
   adversarial system at the basis of our criminal justice system can
   work to arrive at the truth. The requirement of a finding of guilt
   beyond a reasonable doubt also helps ensure that the innocent are not
   convicted. The right to see the evidence the government offers against
   the accused ensures an opportunity to refute, explain or put into
   context otherwise incriminating evidence. The right to a trial by a
   jury of one's peers, presided over by an impartial judge, also helps
   ensure a process designed to arrive at the truth, not at a
   pre-ordained conclusion.
   
   Without enforcement of these rights, the government may focus on the
   wrong people, and even obtain convictions of innocent people, while
   the terrorists go free to engage in more acts of terror.
   
   IV. The Constitution Permits Military Tribunals Only in Certain Narrow
   Circumstances
   
   The Military Order also fails to respect the careful limits that the
   Constitution has placed on the use of military tribunals even when
   authorized by Congress in time of war. If Congress chooses to
   authorize military tribunals, it must respect these limits.
   
   Military tribunals are not a substitute for criminal courts generally,
   but may be applied only to "unlawful enemy belligerents" - a class
   which is far narrower than the universe of all persons who could be
   accused of terrorism crimes, particularly after the broadening of the
   definitions of terrorism in recent anti-terrorism legislation. For
   sound policy reasons, they have most often been reserved for those
   captured abroad in a zone of military operations.
   
   What are those "offenses constitutionally triable by military
   tribunal," Quirin, 317 U.S. at 44, as the Supreme Court determined was
   permissible in the trial of World War II saboteurs? While the line may
   be difficult to draw, it clearly does not extend to all offenses that
   could be labeled terrorism. We know this because of the 1866 case the
   Supreme Court expressly chose not to overrule in Quirin - Ex Parte
   Milligan. That case establishes beyond all doubt that the Constitution
   does not permit all terrorism offenses to be tried in military
   tribunals.
   
   Lamdin P. Milligan was accused of very serious offenses, including
   "[v]iolation of the laws or war," arising from his alleged
   participation in a conspiracy organized by a group called the "Order
   of American Knights" or "Sons of Liberty." 71 U.S. (4 Wall.) at 5. The
   organization planned to seize munitions, liberate prisoners of war and
   generally to conspire in aid of the Confederacy. In short, Milligan
   was accused of being a terrorist. Yet his conviction was overturned by
   a unanimous Supreme Court. The Court found that Milligan could not be
   tried by a military tribunal because he was a citizen of a state which
   had not been in rebellion against the United States, had never been in
   the military, of either side, and the regular courts were available to
   hear any criminal case against him. Id. at 121.
   
   When the Supreme Court faced with the question whether Milligan
   permitted the trial of the saboteurs in Quirin, it was only with
   difficulty that the Court distinguished that precedent. It could not
   be distinguished on the grounds that Milligan involved a citizen,
   since one of the saboteurs was a United States citizen. Instead, the
   Court said that the saboteurs' case, unlike Milligan, involved
   admitted agents of a hostile government "who during time of war pass
   surreptitiously from enemy territory into our own, discarding their
   uniforms upon entry, for the commission of hostile acts involving
   destruction of life or property . . . ." 317 U.S. at 35.
   
   Whether today's terrorists are more like Lamdin Milligan, or the World
   War II saboteurs, the Military Order applies far more broadly than the
   narrow class of enemy belligerents who may constitutionally be tried
   in a military commission, if such trials were authorized by Congress
   with appropriate safeguards. The Constitution plainly does not allow
   this.
   
   Finally, it should be noted that Quirin remains an exceptional case
   for other reasons as well, as we now know from historians. It was a
   rare case in which the government departed from its usual practice of
   using military tribunals only against captured enemy soldiers in a
   zone of military operations. Many of these revelations undercut any
   argument for relying on it today.13
   
   When the World War II saboteurs were caught, following the defection
   of one of their number, there was an immediate public outcry. J. Edgar
   Hoover, then Director of the Federal Bureau of Investigation, was
   worried that the ease with which the saboteurs had penetrated the
   American coastlines and moved freely about the country would damage
   public morale - not to mention his own image. In public, he made it
   sound as though the FBI had solved the case on its own, without the
   extensive help of the defector. Indeed, other saboteurs may have
   intended to defect as well. A military trial would give the government
   greater secrecy - but this was needed not to protect national
   security, but to protect Hoover's image.
   
   Lacking today's extensive criminal laws against terrorism, the
   government was concerned that any offense for which the saboteurs
   would be tried would result in only a minor prison sentence. The
   government knew it was on shaky ground in using military tribunals
   where the criminal courts were open, under Milligan. Nevertheless,
   President Roosevelt made clear he intended to see the saboteurs
   punished, even at the expense of the Constitution. "I want one thing
   clearly understood, Francis," he told Attorney General Francis Biddle.
   "I won't hand them over to any United States marshal armed with a writ
   of habeas corpus. Understand?"14 President Roosevelt need not have
   been so worried. The Supreme Court quickly affirmed the prisoners'
   death sentences. The Court announced it would issue a full opinion
   later. The sentences were carried out.
   
   Upon further reflection, however, the justices found the case was not
   nearly as simple as they thought. Milligan was not so easily
   distinguished, and the justices found themselves disagreeing on basic
   points, some of which could have changed the result if they had been
   considered at the time. Only after Justice Frankfurter issued a
   remarkable, and unusual, patriotic plea for unanimity did the justices
   fall in line.15
   
   Justice Frankfurter later remarked that Quirin "is not a happy
   precedent." Justice Douglas said, "Our experience [in Quirin]
   indicated to all of us that it is extremely undesirable to announce a
   decision on the merits without an opinion accompanying it. Because
   once the search for the grounds . . . is made, sometimes those grounds
   crumble."16 The Supreme Court's record on civil liberties in World War
   II does not inspire confidence. It was, after all, only two short
   years between Ex Parte Quirin's "bending" of constitutional rules and
   the most shameful Supreme Court decision of the century, which upheld
   the internment of Japanese Americans. See Korematsu v. United States,
   323 U.S. 214 (1944).
   
   Under the Constitution, military tribunals can be used only in narrow
   circumstances. They must be authorized by Congress, and may be used
   only against clearly identified "unlawful enemy belligerents." They
   have ordinarily been reserved for those captured in a zone of military
   operations, and their use in other situations has been questionable.
   The Military Order simply does not respect these basic constitutional
   limits on military tribunals.
   
   V. Military Tribunals Must Comport with Basic Due Process and
   International Standards
   
   Finally, and perhaps most importantly, the order utterly fails to
   account for the evolution of both international law and American
   constitutional law since World War II, when military commissions were
   last extensively used. It does not guarantee due process for the
   accused and could permit trials that our own government has said are
   fundamentally unfair and violate basic international standards. If
   Congress chooses to authorize military tribunals for a limited class
   of accused terrorist war criminals, it is imperative that such
   standards apply.
   
   In 1942, international human rights law was in its infancy. Today, a
   host of international instruments, including treaties to which the
   United States is a party, provide guarantees of fundamental due
   process to anyone imprisoned by the state. For example, Article 9 of
   the International Covenant on Civil and Political Rights (ICCPR),
   which the United States ratified in 1992, guarantees liberty and
   protects "the security of the person" from arbitrary arrest and
   detention. Article 14 requires the accused to be given a fair trial.
   
   The procedures that the Military Order contemplates, however, fall far
   short of these standards, as the United States has recognized in its
   insistence on compliance with human rights around the world. For
   example, as noted in a letter to President Bush from Human Rights
   Watch, dated November 15, 2001, the United States government
   
     successfully insisted that a military terrorism trial in Peru
   against United States citizen Lori Berenson be set aside in favor of a
   trial which the State Department demanded be held "in open civilian
   court with full rights of legal defense, in accordance with
   international judicial norms,"
   
     condemned Nigeria for convicting and executing environmental
   activist Ken Saro-Wiwa and eight others after a trial before a special
   military court,
   
     condemned Egypt, in the State Department's most recent human rights
   report, for using military tribunals against suspected terrorists,
   noting that "military courts do not ensure civilian defendants' due
   process before an independent tribunal,"
   
     expressed serious concern about closed tribunals in Russia, where
   foreigners, including Americans, were convicted of espionage.
   
   Already, these concerns have complicated efforts to extradite
   suspected terrorists from Spain and other European countries.17
   
   Likewise, in 1942 the Supreme Court had yet to apply most of the
   guarantees of the Bill of Rights to trials in the state courts,
   viewing these as rights peculiar to the federal system. Over the next
   half century, however, many of the Bill of Rights' guarantees were
   extended to trials in state court. These constitutional protections
   did not directly apply to state courts but instead were seen as
   fundamental to a fair system of justice.
   
   For example, in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme
   Court found that the right to assistance of counsel, protected by the
   Sixth Amendment, was indeed a fundamental right that applied to the
   states under the Due Process Clause of the Fourteenth Amendment. In so
   ruling, the Court overruled an earlier case, Betts v. Brady, 316 U.S.
   455 (1942) which had ruled the right was not fundamental to a fair
   trial. But the Military Order greatly restricts the right to counsel,
   who will be a military officer chosen by the Department of Defense.
   These Supreme Court decisions paralleled statutory reforms of the
   Uniform Code of Military Justice, which now uses judges, not lay
   military officers, and permits review by a civilian court and by the
   United States Supreme Court.
   
   So today, it is not sufficient for the Supreme Court to say, as it did
   in 1942, that the "Fifth and Sixth Amendments did not restrict
   whatever authority was conferred by the Constitution to try offenses
   against the law of war by military commission . . . ." Quirin, 317
   U.S. at 45. Under current law, even if trials are not held in a
   federal court, they must observe basic constitutional rights. If
   military tribunals were authorized by Congress today, they would have
   to observe basic constitutional norms.
   
   VI. Conclusion
   
   The Administration's proposal to substitute military tribunals for the
   regular justice system poses a profound challenge to this nation's
   ability to preserve civil liberty as it combats terrorism in the wake
   of the heinous attacks on the World Trade Center and Pentagon on
   September 11, 2001. The trial of crimes in our constitutional system
   includes a host of procedural protections vital to ensuring the
   government gets it right, punishing the guilty - and only the guilty.
   Some of these rights were affected by Congress's passage of the USA
   Patriot Act. The President's Military Order has the effect of
   rendering the compromises on detention of non-citizens made in the USA
   Patriot Act meaningless in those cases to which it applies.
   
   According to its supporters, the President's Military Order does not
   simply limit constitutional rights in terrorism trials. It abolishes
   them altogether. The procedures to be followed under the President's
   Order simply will not be a matter for the Constitution, but rather for
   the pleasure of the Executive. And if the Executive chooses to violate
   even those rights it decides to confer, the order purports to preclude
   review at any level of federal judiciary, including the Supreme Court
   of the United States.
   
   We are told, however, that military courts will only be used against
   accused terrorists. Attorney General Ashcroft informs us that, once
   accused of terrorism by our government, such persons "are not entitled
   to and do not deserve the protections of the American Constitution."18
   19
   
   It is worth repeating the Supreme Court's firm rejection of a similar
   argument well over a century ago:
   
   "The Constitution of the United States is a law for rulers and people,
       equally in war and in peace, and covers with the shield of its
       protection all classes of men, at all times, and under all
       circumstances. No doctrine, involving more pernicious
       consequences, was ever invented by the wit of man than that any of
       its provisions can be suspended during any of the great exigencies
       of government." 18 19
       
   The Supreme Court made clear the stark choice that would face our
   nation if military rule was not expanded beyond the narrow
   circumstances permitted by the Constitution, but was permitted without
   Congressional authorization and where the civil courts were open, and
   their process, unobstructed. Then, the Court observed: "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."20
   
   But does the advent of modern terrorism "change everything"? The
   strength of our democracy has lied in our ability to resist such
   arguments. In Duncan v. Kahanamoku, 327 U.S. 304 (1946), the Supreme
   Court faced a similar argument when it considered the continued
   constitutionality of martial law in Hawaii, during World War II, after
   the immediate threat of invasion had passed. The government insisted
   that the invention of nuclear weapons required new thinking for a new
   kind of war that would not permit the luxury of rights enshrined in an
   Eighteenth Century constitution.
   
   The Court rejected it. Justice Murphy said, "That excuse is no less
   unworthy of our traditions when used in this day of atomic warfare or
   at a future time when some other type of warfare may be devised." Id.
   at 330-31 (Murphy, J., concurring).
   
   That future time may now be upon us, but the excuse is still unworthy
   of our Constitution. Trial by military tribunal represents the gravest
   possible abrogation of civil liberty. Such use must be carefully
   limited to the most pressing circumstances for civil government to
   survive. Congress must act to ensure that these limits, and its
   authority, remain intact.
            ____________________________________________________
   
                                  ENDNOTES
   
   1 - Uniting and Strengthening America by Providing Appropriate Tools
   Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
   2001, Pub. L. No. 107-56.
   
   2 - Ex Parte Quirin, 317 U.S. at 21-23 (charging violations of
   Articles 81 & 82 of the Articles of War).
   
   3 - See Pub. L. No. 84-1028 (1956) (repealing Articles 81 & 82).
   
   4 - See Cong. Rec. H5638-5683 (Sept. 14, 2001).
   
   5 - It is true that the Quirin Court said that Congress had authorized
   trial of enemy spies not only under Articles 81 & 82 but also under
   the "law of war," citing what is now 10 U.S.C. § 821. But the Quirin
   Court had no occasion to consider the constitutionality of a
   unilateral Executive Branch decision to invoke this authority in the
   absence of a formal declaration of war or of any specific
   authorization of trial by military commission, and against a far
   broader class of defendants.
   
   6 - Likewise, supporters of the trial of accused terrorists fully
   expect (and desire) such trials to be used in domestic terrorism cases
   against United States citizens. Spencer J. Crona & Neal A. Richardson,
   Justice for War Criminals of Invisible Armies: A New Legal and
   Military Approach to Terrorism, 21 Okla. City U. L. Rev. 349, 372
   (1996) ("[C]itizenship of the accused poses no obstacle.")
   
   7 - Significantly, similar court-stripping language in President
   Roosevelt's order was held not to oust the Supreme Court's authority
   to review the prisoners' claims on habeas corpus in Ex Parte Quirin.
   In addition, Ex Parte Milligan makes clear that only Congress, not the
   President acting alone, has the power to suspend habeas corpus.
   Furthermore, the Supreme Court has made clear just this summer, in INS
   v. St. Cyr, 121 S. Ct. 2271 (2001), that Congress must explicitly
   invoke the habeas corpus statute, 28 U.S.C. § 2241, in order to modify
   the habeas corpus right, as it did in the USA Patriot Act. The order
   does not do this.
   
   8 - Burrus M. Carnahan, Lincoln, Lieber and the Laws of War: The
   Origins and Limits of the Principle of Military Necessity, 92 Am. J.
   Int'l Law 213, 223-25 (1998). Of course, Lincoln's views of what was
   "necessary" conflicted with that of the Supreme Court in the Milligan
   case.
   
   9 - See, e.g., 18 U.S.C. § 3521.
   
   10 - This is one reason why supporters of military justice for accused
   terrorists contemplate a very different process. See Crona &
   Richardson, supra, at 375 (complaining that "[t]he UCMJ uses a form of
   due process almost as elaborate as the civilian criminal justice
   system.) But neither international law nor domestic constitutional law
   permit the sacrifice of basic due process, even where military justice
   is permitted.
   
   11 - Daniel M. Filler, Values We Can Afford-Protecting Constitutional
   Rights in an Age of Terrorism: A Response to Crona and Richardson, 21
   Okla. City U. L. Rev. 409, 413 (1996).
   
   12 - For example, the Anti-Terrorism and Effective Death Penalty Act
   of 1996 amended 28 U.S.C. § 2255 to place a one-year time limit on
   habeas corpus challenges to federal convictions.
   
   13 - See Daniel J. Danelski, The Saboteurs' Case, 1 Journal of Supreme
   Court History 61 (1996).
   
   14 - Id. at 68. A habeas corpus challenge was to be the prisoners'
   only real appeal. While the military commission permitted review by
   the President, it seemed unlikely such review would be meaningful, as
   the President was mainly concerned with the most fitting method of
   execution.
   
   15 - Id. at 77-78.
   
   16 - Id. at 80.
   
   17 - See T.R. Reid, Europeans Reluctant to Send Terror Suspects to
   U.S., Washington Post, Nov. 29, 2001, at A23.
   
   18 - Naftali Bendavid, Critics Attack Tribunal Proposal, Chicago
   Tribune, Nov. 15, 2001.
   
   19 - Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866).
   
   20 - Id. at 124-25.
   
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