President Bush's military order establishing military tribunals to try noncitizens; is it beyond his constitutional and statutory authority?

• Author: Pedata, Martin A.

On November 13, 2001, President Bush signed a military order authorizing the creation of military tribunals to try individual noncitizens of the United States who are suspected to be members of an organization known as al Quaida, or who have been engaged in international terrorism against the United States. (1) The military order permits the President, on the mere stroke of his pen, to determine, "from time to time," the noncitizen who may be apprehended, tried, and punished by a military tribunal. (2) The only prerequisite for detention of a suspect is that the President has a "reason to believe that such individual" is or was a member of al Qaida, or engaged in an act of international terrorism, or harbored one or more such individuals, during some "relevant times" that are not specifically outlined in the order. (3) The breadth of President Bush's military order of November 13, 2001, raises serious constitutional concerns. The purpose of this article is to address and analyze whether the military order exceeded the President's statutory and constitutional authority.

Commander in Chief Status Does Not Authorize Military Commissions

In the preamble of the military order, President Bush asserts that he has the authority as President and Commander in Chief of the Armed Forces to establish military tribunals to try and punish those individuals who are subject to the order. (4) However, the President's power as Commander in Chief of the Armed Forces does not authorize him to create military commissions. (5) It is well established that the President "can exercise no authority whatever but that which the Constitution of the country gives him." (6) It is equally clear that the President "is elected ... to perform those functions, and those only, which the constitution of his country, and the laws made pursuant to that Constitution, confer. (7) It is undisputed that the constitution does not expressly provide the Executive Branch with such a power or authority. Additionally, Congress did not grant the President, by statute or joint resolution, the power to create military tribunals. (8) In fact, the Supreme Court has already ruled, in Ex parte Milligan, 71 U.S. 2 (1866), that only Congress had such right. Thus, it appears that the military order is unconstitutional.

Statutory Authorities Cited Do Not Authorize Creation of Military Tribunals

President Bush's military order cites two sections of the Uniform Code of Military Justice, [subsections] 821 and 836, as his authority for the detention, treatment, and trial of certain noncitizens in the war against terrorism. (9) Both of these sections, however, do not confer any authority upon the President to establish military commissions. Section 821 (10) states:

The provisions of this chapter conferring jurisdiction upon courts martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals. (11)

Thus, [section] 821 does not authorize the creation of military tribunals or commissions, but simply states that courts-martial do not deprive military commissions of tribunals of jurisdiction when properly authorized by statute or by the law of war. (12) Moreover, [section] 836 (13) delegates to the President authority to promulgate rules of court and procedures for courts-martial, military commissions, and other military tribunals or courts of inquiry, but does not itself authorize the establishment of military tribunals as contemplated by President Bush's military order. Thus, President Bush's reliance upon those statutory sections as authority for his actions is misplaced.

Suspension of Habeas Corpus Relief Beyond Authority

The military order provides that the individual subject to the order "shall not be privileged to seek any remedy of maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States." (14) In effect, that provision of the military order suspends the writ of habeas corpus, in that an individual subject to the military order can be held for an indefinite period of time without being charged with a crime...