executive order re: military trials

[Christopher Eisgruber]

Mark Tushnet wrote:

> 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)?

I don't find this very encouraging (with or without Mark's amendment re:  Tarble).  If a court can determine only whether defendants were properly classified as subject to Bush's military order, then the substantive scope of judicial review seems very limited.  Under the order, non-citizens may be subjected to military trial if President Bush determines that "there is reason to believe that such individual [was affiliated with or knowingly helpful to al Qaeda]."  Presumably habeas jurisdiction (however obtained) would permit a court to determine whether a defendant was properly classified as subject to the order.  But "proper classification" may turn only upon whether the president had a "reasonable belief"--not a demanding standard.

I should add that I am unconvinced that Quirin is sufficiently broad to justify the Bush order.  The Roosevelt order in Quirin was limited to those who had entered the United States surreptitiously during time of war, and, as I read the case, the defendants stipulated that they had done so and (moreover) had done so as German agents.  The Bush order applies even to legally admitted aliens who claim (perhaps truthfully) that they are here to pursue a better life for themselves and their families.  That seems to me a more sweeping, and disturbing, displacement of civilian courts.  And, as others have already noted, the Roosevelt order (unlike the Bush order) appears to have been buttressed by congressional authoriation of military tribunals in the Articles of War.

Finally, insofar as Quirin states a rule broad enough to cover the Bush order, I am not sure that we should view it any more favorably than, say, Korematsu.

--
Christopher L. Eisgruber
Director, Program in Law and Public Affairs
Laurance S. Rockefeller Professor of Public Affairs
Woodrow Wilson School
Princeton University
Princeton NJ   08544
eisgrube at princeton.edu
tel: 609 258-6949
fax: 609 258-0922