Bush Military Court Order

[Bryan Wildenthal]

I'll bite on John's final paragraph.  I have not had time for various
reasons to contribute to the list this autumn, but have been following the
discussion with interest.  But President Bush's executive order simply
cannot be left un-responded to by any responsible lawyer, or indeed any U.S.
citizen who cares about what this country stands for (I single out citizens
only because we are the responsible constituents of the body politic which
gives Bush his power).  Paraphrasing the President himself (whose conduct of
this crisis, I should note, I admire in many ways), either you are for this
order (and thus, in my view, for a dangerous abandonment of part of our
birthright of liberty) or you're against it.

Yes, I think Quirin was wrongly decided (it's of the ilk of Korematsu,
another poisoned gift of WWII to our constitutional jurisprudence), though
admittedly a closer case than military trial within the U.S. of any
perpetrators of the Sept. 11 attacks apprehended within the U.S. (citizen or
non-citizen).  And yes, I think Art. I:8:10 plainly must be subject to Art.
III, Amend. VI, etc.

Pardon me for being old-fashioned, and a boring textualist, but last I
checked the Constitution says that "the trial of all crimes, except in cases
if impeachment, shall be by jury," etc.  Art. III; see also Amends. VI &
XIV, etc.  Yeah, yeah, there are arguable exceptions, like military
courts-martial under Art. I:8:14, but arguments to extend that, or cases
like Quirin, to crimes committed by non-uniformed freelance civilians within
the US at times and places when the civil courts are open for business (see
Ex parte Milligan) simply illustrate to me the frightening capacity of
lawyers to rationalize away our fundamental freedoms.

The notion that the President and his executive subordinates might
constitutionally be able to conduct "military commission trials" of
non-uniformed civilians not part of any declared or formally recognizable
"war" (whether citizen or alien plainly does not matter, since all "persons"
are protected by the relevant guarantees, even illegal aliens), for acts
(however horrific) allegedly committed within the territorial jurisdiction
of the U.S. plainly falling within the scope of federal and state criminal
laws, outside of any reasonably definable "theater of war," at a time and
place when the civil courts are open and functioning, shocks me so deeply
that I am literally almost speechless.

I am even more deeply shocked, and truly demoralized, if more than 1% of the
constitutional scholars on this list would countenance application of Bush's
order in the circumstances described.  (How to handle suspected terrorists
captured overseas during military operations in a theater of war is a
different and more difficult question.)

Of course, I have already been shocked and demoralized by how many
colleagues on this list have suggested openness to the legitimacy of
government torture under some of the circumstances raised by this crisis.
It so happened that Prof. Paul Finkelman was visiting my school as a guest
lecturer at the time that issue arose on the list, and he and I happened to
visit the torture-device exhibit at San Diego's Museum of Man.  It's a grim
and disturbing exhibit (to put it mildly! I felt physically ill for hours
afterward), and I think many of the viewpoints offered on the list might
have been different following a one-hour tour of it.  People can (and will)
rationalize ANY evil once the door is opened to even the theoretical
justifiability of something like torture.  But I don't have time to go there
any further at the moment.

Bryan Wildenthal
Thomas Jefferson School of Law

"Those who would sacrifice essential liberty for a little temporary safety
deserve neither liberty nor safety."  -- Benjamin Franklin

> -----Original Message-----
> From: John Noble [mailto:jnoble at DGSYS.COM]
> Sent: Friday, November 16, 2001 12:28 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Bush Military Court Order
>
>
> If A then B?
>
> A) Title 10 + Joint Resolution + Quirin = executive authority
> to try and
> sentence unlawful belligerents in the war on terrorism
>
> B) Title 10 amended + Joint Resolution + Quirin = executive
> authority to
> try and sentence unlawful belligerents in the war on drugs
>
> Is there a constitutional basis for distinguishing between
> international
> terror and international drug trafficking -- to exclude drug
> smuggling and
> distribution from a broad definition of terrorism; or to deny
> international
> drug trafficking its own place in the "Law of Nations" that
> undergirds the
> Art. I, sec. 8, cl. 10 authority? Is there a constitutional
> basis, contra
> Quirin, for distinguishing between citizens and non-citizens?
> In short,
> does the Constitution prevent the use of military tribunals to try and
> sentence street level drug dealers to "combat" an
> international network of
> "narco-terrorists"?
>
> The limitation that occurs to me is that offenses against the Law of
> Nations require some measure of state-sponsorship. If that is
> the case, is
> the President's authority evaporating as quickly as the
> Taliban's hold on
> Afghanistan? -- does the President's authority extend at all
> to the broader
> Al Qaeda network, the elements that are not state-sponsored?
>
> The other limitation, reflected in Title 10's limited grant
> of jurisdiction
> over violations of the "laws of war," is that the authority might be
> limited to cases of violent aggression or depend upon a
> declaration of war.
> But that limitation isn't reflected in the broader
> constitutional grant of
> authority to define and punish offenses against the Law of
> Nations, which
> Quirin characterizes as "including those which pertain to the
> conduct of
> war." In fact, unless the operative limitation is state sponsorship, I
> don't see why Quirin's reading of I.8.10 doesn't authorize Congress to
> create a non-Article III tribunal with unreviewable jurisdiction over
> copyright infringement claims (post-Berne). Can Congress
> withdraw from the
> Article III judicial power, and the protection of the 6th
> Amendment, any
> crime or claim under U.S. law which is also an offense
> against the Law of
> Nations?
>
> Is anyone inclined to the view that Quirin is wrong -- that the I.8.10
> authority to "define and punish" offenses against the law of
> nations is not
> in derogation of the judicial power to "decide" cases arising
> under the
> laws of the United States. Is the conflict reconciled by reading the
> judicial power to extend to cases that arise under the laws
> of the United
> States, even if they also violate the law of nations -- whether it is
> copyright infringement, drug trafficking, or blowing up skyscrapers?
>
> Am I missing something obvious?
>
> John Noble
>