Prof. Tribe's article in The New Republic: Congress'exercise of art. I, sec. 8 war power

[Chris SCHROEDER]

I will take the liberty of sending the list an e mail sent earlier to
another list.

First, whatever the status of the joint resolution on the use of
force,
it is doubtful that a formal declaration of war is necessary to invoke
the jurisdiction of military tribunals.  At step one, there is a
respectable argument that the establishment of military tribunals was
congressionally authorized when it enacted the UCMJ back in 1950 or
thereabouts, because the language from the Articles of War upon which
the Quirin court apparently relied for its finding of congressional
authorization was carried over into the UCMJ.  Now step two, that
authorization is limited in its jurisdictional reach to violations of
the law of war. (on this point, more below).  Finally, step three,
international law is murky on precisely when the law of war applies
(does it, for instance, apply to peace keeping missions as in
Somalia?),
but it is pretty clear that it applies in more situations than
officially declared wars.  It applies to de facto wars, where the
parties are *obviously* at war, but have not said so, for example.  I
think most international scholars would conclude it applies at least
to
the actions of US and Afghani troops in theater.  It probably applies
to
the acts of 911, too, although there can be more disagreement about
that.  (As to the Prize Cases, I think their relevance here is limited
to establishing the general point that the law of war can be applied
to
non-formally declared wars.  The Prize Cases relied in part upon the
idea that the Constitution does not give Congress the authority to
declare war on states of the union, and it may be equally true that
the
US lacks the power to declare war on a non-state entity, so a court
might see the two situations as analogous.)

So no declaration of war is required for the laws of war to be
invoked.
  (If some official acknowledgement were helpful for purposes of
invoking
the law of war, the J.Res. might be taken to be a congressional
acknowledgement that the law of war should apply, insofar as The
J.Res.
sanctions the use of military force abroad).

Conceding that the President could establish millitary tribunals
simpliciter, however, is not to say that he can establish them for any
purposes whatsoever.  The Duncan case from WWII Hawaii, in which the
Supreme Court held that a simple embezzler could not be tried before
such a tribunal, stands for this proposition, as does Millilgan.  So
the
question is what limits are there to the jurisdiction of such
tribunals,
even assuming we are in a situation where they can be constitutionally
established for some purposes.

Here, I think the President's military order strays well over the line
- in fact, over several lines.  First, my reading of the statutory
authorization limits it to tirubnals established to try violations of
the law of war (that was step two, above).  This comes from the
language
of Article 21 of the UCMJ which says that the creation of courts
martial
does not deprive military commissions of *concurrent jurisdiction with
respect to offenders or offenses that by statute or by the law of war
may be tried to military commissions.*  There are, however, no
statutes
that give military commissions jurisdiction over any offenses at all,
so
their jurisdiction must be limited to violations of the law of war.
The
November 3 order tries to go further.   For example, although I have
not
researched this thoroughly, harboring someone who is a member of Al
Qaeda, even if the person being harbored has engaged in no violations
of
the law of war, is covered by the military order but would not be a
violation of the law of war. Nor would simply being a member of Al
Qaeda.

Second, beyond the limits imposed by the law of war concept, our
Constitution imposes some limits.   People are now arguing over what
old
cases mean in the contemporary setting, but if Milligan together with
Quirin are to be combined in some sensible way, some distinction must
be
made between combatants or belligerents (Quirin) and non-combatants
who
are actively trying to support a rebellion or war effort (Milligan).
The former can go before military tribunals, so far as the Consitution
is concerned, while the latter cannot, so long as the regular courts
are
functioning.  These cases cover only citizens by their own terms, but
more modern cases support the view that whatever constitutional
protections citizens receive in this regard also extend to resident
aliens.  They may even extend to non-resident aliens who are in the
country lawfully.

What limits apply overseas is another kettle of fish, because of Sup.
Ct. cases limiting the extraterritorial application of the
Constitution.
  If those cases are correct, there is an argument that there are no
constitutional restrictions in the theater of war, so that the
relevant
limits would come only from the scope of the law of war.


Chris Schroeder



Chris Schroeder
Charles S. Murphy Professor of Law and Public Policy Studies
Director of the Program in Public Law
PO Box 90360
Duke Law School
Durham, NC 27708-0360
voice:  919 613 7096
fax: 919 613 7161
schroeder at law.duke.edu
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