executive order re: military trials

[Mark Tushnet]

Isn't the answer that the tribunal's jurisdiction turns on the proper classification of the defendant, and that a federal district court on habeas will examine the jurisdictional question (and that the order's preclusion of review should not be interpreted to preclude habeas review of the jurisdictional question or, if so interpreted, is unconstitutional)?

James Maule wrote:

> I'm curious as to how are these cases distinguishable and if so, what happens? If there is some "spy/terroris/saboteur v. nonspy/nonterrorist/nonsaboteur" distinction, then is there a preliminary tribunal that makes the "this person is a spy/terrorist/saboteur" determination, and if the determination is "yes, a spy/terrorist/saboteur" then the proceedings move to a military tribunal? Or is the military tribunal to make the initial determination and relinquish jurisdiction if the person is not a spy, terrorist, or saboteur? Suppose a German vessel had run aground off Long Island and the occupants claimed to be fishermen who lost their bearings in a storm? Would they have been entitled to a hearing in district court on their status? Isn't there a chicken-and-egg problem?
>
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> http://vls.law.vill.edu/prof/maule
> President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
> Publisher, JEMBook Publishing Co. (www.jembook.com)
> Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
> Maule Family Archivist & Genealogist (www.maulefamily.com)
>
> >>> funk at LCLARK.EDU 11/14/01 12:52PM >>>
> Edward Hartnett wrote:
>
> >The text of President Bush's order regarding military trials for terrorists
> >is available at
> >http://www.abcnews.go.com/sections/us/DailyNews/bush_terror_order011113.html
> >
> >Any reactions?
> >
> My god!  The Order authorizes the President to identify any noncitizen
> who is or was a member of al Qaida and has engaged in international
> terrorism or has aided international terrorists.  That person is then to
> be seized by the Secretary of Defense and tried by a military tribunal
> under rules of procedure that provide for such parts of the trial to be
> secret as necessary to protect classified information.  The right to
> appeal or seek habeas corpus from civil courts is specifically denied.
> Were it limited to persons apprehended outside the United States...., it
> would be one thing.  The trial by military commissions of captured
> belligerents or spies in a theater of war has substantial precedent.
>  But nothing in the order excludes its use with respect to the 800 odd
> persons currently in detention in the United States for immigration
> violations, if the President makes the necessary determinations.
>  Correct me if I'm wrong, but the last domestic military tribunal (not
> to be confused with courts martial) involved the German spies captured
> on the east coast during WW II and discussed in ex parte Quirin, 317 US
> 1 (1942), and the next to last one was the military tribunal that tried
> those involved in the Lincoln assassination plot.  These are precedents
> for military tribunals domestically, but I had hoped that the situations
> then and now were distinguishable.
>
> Bill Funk
> Lewis & Clark Law School
> But it isn't.
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