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Are military tribunals constitutional? Does President Bush have the authority to convene them? Do they threaten the civil liberties of U.S. citizens? The following Q & A gives you a concise summary of the facts and the law on military tribunals. After reading it, you may want to call Sen. Patrick Leahy (D-VT) and tell him to stop stirring up controversy over the use of military tribunals and get to work confirming President Bush's nominees to the federal bench. Leahy's phone number is (202) 224-4242. Answers in the Q & A are drawn from the President's Executive Order and Supreme Court case law:
1. What is a "military tribunal"? A. Military tribunals, also called "military commissions," are courts composed of individuals, who may be military or civilians (retired and even sitting judges are sometimes used), appointed by a military commander. The Supreme Court says "military tribunals are our common-law war courts." Madsen v. Kinsella, 343 U.S. 341 (1952). 2. What is the purpose of military tribunals? A. A military tribunal is a "tribunal for the trial and punishment of offenses against the law of war." Ex Parte Quirin, 317 U.S. 1 (1942). The "law of war" is "that part of the law of nations which prescribes, for the conduct of war, the status, rights, and duties of enemy nations as well as of enemy individuals." Id. The tribunals assist the President, as Commander-in-Chief, in his "urgent and infinite responsibility not only of combating the enemy but of governing territory occupied by the United States by force of arms." Madsen. 3. Are military tribunals constitutional? A. The Supreme Court says "[s]ince our nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war....They have taken many forms and borne many names. Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in each instance to the need that called it forth." Madsen, citing In re Yamashita, 327 U.S. 1 (1946). 4. Has Congress enacted legislation to grant President Bush authority to convene military tribunals? A. Yes. The Supreme Court says "[o]ur Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege....by Article 15 of the Articles of War Congress has made provision for their trial and punishment by military commission, according to 'the law of war'." Quirin. After World War II, Congress reenacted the Articles of War as the Uniform Code of Military Justice. Article 15 of the old Articles, which authorized the President to convene military tribunals, became section 821 of the UCMJ, 10 U.S.C. s. 821. 5. Who are the "unlawful belligerents" who are not entitled to P.O.W. status and who may be tried by military tribunal? A. The Supreme Court defines them as "[t]he spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals." Quirin. Obviously, terrorists fit this definition precisely. 6. May U.S. citizens be tried by military tribunal? A. [Note: After the arrest of Jose Padilla, an American citizen who converted to Islam while in prison as an accessory to murder and planned to detonate a nuclear "dirty" bomb in Washington, D.C., it appears the President has realized that the real threat comes from Muslims in the U.S. and is prepared to use his full authority under the law to protect us from citizens who believe the Koran, not the Constitution.] Not this time around. President Bush's Executive Order requires that only those individuals who are "not a United States citizen" may be tried by military tribunal. In addition, to be tried by a military tribunal, the President must determine in writing that the individual was a member of Al Qaida or attempted to commit or aid acts of international terrorism or harbored such individuals. In past cases, the Supreme Court has said "[c]itizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war." Quirin. President Bush chose not to use the full authority the Court has granted to military tribunals. 7. Can individuals whom the President desires to try by military tribunal ask regular U.S. federal courts to determine whether the President's Order applies to them? A. Yes. The Supreme Court said, in cases challenging trial by military tribunals convened by President Roosevelt during and after W.W. II that "neither {the President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission." Quirin. 8. Does President Bush's Executive Order protect the human and civil rights of individuals tried by military tribunal? A. Yes. The Order grants individuals the right to: (1) A full and fair trial (2) Admission of such evidence as would...have probative value to a reasonable person. (3) Right to counsel of their choice. (4) Conviction only upon concurrence of two-thirds of the members of the commission. (5) A record of the trial before the tribunal (6) Review and final decision by the President or the Secretary of Defense (7) Humane treatment, without any adverse distinction based on race, religion, gender, birth, wealth or any similar criteria (8) Adequate food, drinking water, shelter, clothing, and medical treatment (9) Free exercise of religion consistent with the requirements of such detention (10) Right to Presidential pardon regardless of the findings or sentence of the tribunal 9. Can we, the People, hold the President accountable for his conduct of the military tribunals? A. Yes. The President is politically accountable, just like Congress is when it passes bad laws. We can consider how the President employed military tribunals when deciding whether to reelect him or members of his party. 10. Have other Presidents, including the Founding Fathers, ordered the use of military tribunals? A. Yes. The Supreme Court says beginning with "a number of cases during the Revolutionary War enemy spies were tried and convicted by military tribunals." Referring to the writings of George Washington and the records of the Continental Congress, the Court lists no less than 22 individuals tried by military tribunal while Washington was Commander-in-Chief. In Congress, the Founding Fathers renewed the authority to conduct military tribunals in 1806, in an act the Court says was "derived from the Resolution of the Continental Congress of August 21, 1776 [that] imposed the death penalty on alien spies 'according to the law and usage of nations, by sentence of a general court martial.'" The Court says "[t]his enactment must be regarded as a contemporary construction of both Article III, Section 2 [of the Constitution] and the Amendments [enating the Bill of Rights] as not foreclosing trial by military tribunals, without a jury, of offenses against the law of war committed by enemies not in or associated with our Armed Forces. It is a construction of the Constitution which has been followed since the founding of our government, and is now continued [during W.W.II]. The Supreme Court, considering the authority to try individuals by military tribunals during W.W.II said "[s]uch was the practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars." |
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