- The Washington Times - Friday, November 16, 2001

President Bush's executive order permitting the use of "military commissions," rather than the civilian federal courts, to try captured al Qaeda members has prompted attacks from both left and right. Some of these have been measured and well-founded expressions of concern. Others have been nearly hysterical. Of particular note is William Safire's recent New York Times essay, "Seizing dictatorial power," a title that does full justice to his theme. The president, Mr. Safire claims, has "seize the power to circumvent the courts and set up his own drumhead tribunals." This is hogwash. By ordering the establishment of military commissions to try al Qaeda, the president has admittedly invoked one of the most extraordinary and frightening weapons in the Executive Branch's arsenal, but it is nevertheless an entirely legal and constitutional one.

Military commissions have a long history in American legal practice, dating to the Revolutionary War itself, when George Washington convened several to try British spies, most notably Benedict Arnold's correspondent Maj. John Andre. More to the point, they have been employed on a number of occasions since the Constitution was adopted, and the Supreme Court has upheld their use in the very narrow circumstances during time of war where those bodies have traditionally operated. Under the Supreme Court's precedents, such commissions may be used during wartime to try and punish individuals who qualify as "unlawful combatants." The concept of an unlawful combatant is one of the most basic tenets of the laws of war. Individuals, like al Qaeda, who do not wear uniforms, do not carry arms openly and who belong to an organization that itself does not recognize the laws of war, are considered unlawful combatants. Like spies and saboteurs they have traditionally been dealt with summarily, often with little or no legal process at all.

Proceeding against unlawful combatants in special tribunals is justified because such individuals have chosen to put themselves beyond the law's protections or, more correctly, they have willfully subjected themselves to a different system of law because of their status as unlawful combatants. Here it must be emphasized that it is their unique status, and not the nature of the crimes involved, that permits their trial before military commissions. Ordinary civilians and lawful combatants, i.e., members of military organizations that do have a recognized chain of command, wear uniforms, carry arms openly and acknowledge the laws of war, cannot be subjected to trial by military commission, even if they are accused of criminal acts such as war crimes or crimes against humanity. Civilians accused of such crimes must be tried in the normal civilian courts, with the fullest protections of the Bill of Rights, and service members accused of such crimes are entitled to regular courts- martial, with all of the very elaborate procedural protections accorded by those bodies.

That said, it is also the case that the use of military commissions is a highly unusual and extraordinary action. The president's defenders should stop pretending otherwise. The last time such commissions were employed was during World War II, when Congress invoked the full war powers of the United States by formally declaring war on Germany and Japan, and when the United States faced an enemy far more powerful and dangerous than al Qaeda or the Taliban. Such commissions were, it is true, used fairly frequently during the Civil War. The result, of course, was the Supreme Court's landmark decision in In re Milligan (1866), forbidding the use of such courts for civilians when the normal civilian courts are open as they now are and clearly confining such proceedings to unlawful combatants. Military commissions emphatically are not part and parcel of the normal American judicial system.

It is also no use arguing that the due process provided in military commissions is equivalent, if different from that, provided by the Bill of Rights in civilian courts. It is not. Military commissions operate in secret. There are no juries, and the tribunal's impartiality depends entirely upon the good will and behavior of the commissioners. The right to confront and cross-examine witnesses, as well as other procedural protections, can be severely circumscribed. These are not, we stress, the new civil liberties (such as the Miranda warning) manufactured by the Supreme Court under Chief Justice Earl Warren in the 1960s. The rights at issue here are the bedrock of our system of "ordered liberty," and were developed over centuries. The founders of our republic held them as dear as life itself and incorporated them into the Constitution because they meant them to be respected. Such clear and dramatic departures from our most fundamental legal traditions can be justified only in the most extreme circumstances.

The president has concluded that such circumstances exist. To quote his order, "I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency." It is the president's constitutional role, as chief executive and commander in chief, to make such determinations, and neither he, nor his administration, have given any reason to doubt the genuine nature of the emergency. Indeed, all of the publicly available evidence confirms it. Although the legal case for using military commissions would be considerably strengthened by a formal declaration of war from Congress, there is no doubt that an actual armed conflict exists. Whether this is sufficient to support the use of military commissions is a question only the Supreme Court can answer, and the Supreme Court has not gone on holiday.

If the administration actually uses the power that Mr. Bush has invoked, the Supreme Court will be called upon to determine whether his order fits within the traditionally narrow circumstances where military commissions are permissible. That is how our system is supposed to work, and it is working.


David Rivkin Jr. and Lee A. Casey are partners in the Washington law firm of Baker & Hostetler.


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