Bush Military Court Order (long)

[Mark Tushnet]

In teaching about the executive order in Federal Courts today, some (I
thought) interesting matters arose.  First, a lot of the substantive
concerns about the order depend on precisely what regulations the
Secretary of Defense adopts.  (For example, the order appears to
authorize regulations under which the President could reverse an
acquittal or increase a sentence, but it doesn't mandate such
regulations.)  Second, a fair amount of the matters about which
substantive constitutional questions have been raised are, in my view,
actually unresolved and with no obvious answers (for example, the
constitutionality of imposing a death penalty by a vote of two-thirds of
the tribunal).

Third, that means that the more interesting questions, at least for me,
are about the purported preclusion of judicial review.  But one of my
students pointed out that, by a reasonable interpretation of the order's
terms, review of a claim by a person that s/he is a citizen is not
precluded, and that by a somewhat strained -- but reasonable if a clear
statement requirement is imposed -- interpretation, neither is review of
a claim that the person is not in fact a terrorist (or, to recall the
Demanjuk case, not the terrorist named in the President's signed order
subjecting the person to the order).

Fourth, there is a serious dispute in the literature about the
application of the relevant constitutional provisions to non-citizens
outside the borders of the United States, reviewed in detail in Gerry
Neumann's book.  My take on the literature is that the weight of
authority lies with the position that the constitutional provisions do
not apply, but that the contrary position -- that the Constitution
restricts the power of persons, wherever located, exercising authority
conferred on them by the Constitution -- has powerful support in reason
and some support in authority.

Fifth, on the preclusion of review (to keep it simple) of a claim
brought by a non-citizen tried by a tribunal within the territorial
borders of the United States (and how many of them will there be?) that
the order's processes violate various constitutional provisions:  I
think the analytic questions are extremely difficult.  I personally have
defended the position that Congress has plenary power to restrict
jurisdiction, but a significant part of my argument rested on the claim
that Congress had in fact acted in a constitutionally responsible manner
in the past and that it had done so in part at least because there were
predictable political limitations on what it could actually do.  The
question for me, then, has two branches.  (a)  Are the political
constraints on a president acting alone sufficiently different from
those on Congress to make the "plenary power" position problematic when
an executive order is involved?  (b)  Is the Joint Resolution and/or the
statutes cited in the order sufficient to constitute congressional
authorization of preclusion of review?  (On the latter question, my
inclination would be to impose a clear statement requirement, and my
guess is that the Resolution and statutes shouldn't be taken to satisfy
such a requirement.)

Sixth, the analytic questions are, in my view, genuinely difficult ones
-- not readily resolved in favor of or against the constitutionality of
the executive order's preclusion of review provisions as applied to
claims going to the procedures adopted by the tribunals (as indicated
above, they are not as difficult, I think, in connection with review of
claims fairly describable as going to jurisdictional facts like
citizenship or identity or even membership in al Quaeda).  I think,
therefore, that people (like me) with civil libertarian inclinations who
are nervous about the order ought to entertain the possibility that the
order is actually constitutional, and that the step that follows from
entertaining that possibility is to consider the possibility that
Constitution isn't actually a good one (in this respect).  When I raised
the question of that last step with my class, there was an audible
intake of breath, which is itself an interesting datum, I think.

Sorry for the length of this posting.