Waging war, deciding guilt: trying the military tribunals.

• Author: Katyal, Neal Kumar

A time of terror may not be the ideal moment to trifle with the most time-tested postulates of government under law. It is certainly not a good time to dispense lightly with bedrock principles of our constitutional system. Central among those principles is that great power must be held in check and that the body that defines what conduct to outlaw, the body that prosecutes violators, and the body that adjudicates guilt and dispenses punishment should be three distinct entities. To fuse those three functions under one man's ultimate rule, and to administer the resulting simulacrum of justice in a system of tribunals created by that very same authority, is to mock the very notion of constitutionalism and to make light of any aspiration to live by the rule of law. (1)

In a time of declared war, or in a place where no other form of justice can be administered, institutional arrangements resembling that sketched above, reposing this extraordinary mix of powers in the President as Commander in Chief, might be tolerable. Short of such extreme circumstances, the Constitution at least requires, at a bare minimum, that offenses be defined in advance by positive legislation, that the judicial branch be open to test whether any given individual is properly subject to the jurisdiction of the tribunals at issue and whether the system of tribunals as a whole comports with constitutional commands, and that appeal to some body independent of the President as the convening and prosecuting authority be available to test whether any conviction and sentence handed down by one of the President's tribunals is supportable in law on the evidence presented.

The Constitution requires as well that, absent circumstances so exigent as demonstrably to rule out resort to Congress, that lawmaking body and not the Commander in Chief be the authorizing agent and the architect of the tribunals themselves. For the President to proceed on his own to alter the jurisdiction of the federal courts, redesigning the very architecture of justice, without any colorable claim that time is too short for Congress to act, is to succumb to an executive unilateralism all too familiar in recent days. As of this writing, to take a few examples, the President has evidently decided on his own that those detained at Guantanamo Bay, Cuba, are unlawful belligerents not entitled to prisoner-of-war status; he has suspended one of the oldest privileges in Anglo-American jurisprudence, the attorney-client privilege, for certain suspects; he has detained over a thousand people without ever publicly identifying all those who have been detained; and he has convinced American news networks not to carry full broadcasts of Osama bin Laden because the broadcasts may carry hidden messages. (2)

While some of these decisions are undoubtedly justified, in the pages that follow we show that the President's Order establishing military tribunals for the trial of terrorists is flatly unconstitutional. We argue that military tribunals are not necessarily unconstitutional under all circumstances; we examine and apply the relevant judicial precedents bearing on when such tribunals may properly be used; and we identify a few open questions that we think merit further consideration.

1. THE MILITARY ORDER

   Without advance notice to either the congressional leadership or the public, President Bush issued a Military Order on November 13, 2001, which directed the Secretary of Defense to create military tribunals and to take into custody at once anyone the President names as subject to the Order. (3) The range of people eligible to be so named is vast--potentially jeopardizing the rights and liberties of the approximately 20 million aliens in the United States, as well as any non-United States citizen anywhere in the world. The only cognizable standard for the tribunals' jurisdiction is appreciably toothless: All it takes is the President's unilateral written statement that he has "reason to believe" either that a particular noncitizen has at some point committed, or aided and abetted, what the President deems an act of "international terrorism," or that a person is, or at any point was, a member of a named terrorist organization (al Qaeda). (4) The Order's terms sweep so broadly that they reach a Basque separatist who kills an American citizen in Madrid, or a member of the Irish Republican Army who threatens the American embassy in London. (5)

   The Order explicitly permits the tribunals to "sit at any time and any place"--including the United States. (6) While the Military Order's procedural protections fall conspicuously short of those most Americans take for granted, (7) the Secretary of Defense is authorized to provide further protections through regulation. (8) Such regulations are necessary to cure some of the dramatic problems plaguing the Order, such as its authorization for the tribunals to operate in secret, without any publicity to check their abuses and with no threshold requirement of a showing that such secrecy is needed, (9) and its grant of permission to impose the death penalty without a unanimous vote either on guilt or on the sentence. (10) Even with regulations to plug those holes, however, the tribunals would by design eschew both grand jury presentment and jury trial, and would employ--as the triers of fact and law--military officers who lack the insulation of Article III judges, being wholly dependent on the discretion of their military superiors for promotions and indeed for their livelihood. Furthermore, the Order does not guarantee an appeal from any conviction or sentence to judges independent of the executive branch. (11) Rather, language in the Order strongly suggests a desire to eliminate even habeas corpus review of the legality of the entire scheme and of the tribunals' jurisdiction over particular individuals. (12)

   The Order is so written that virtually any act by an alien, anywhere, could, in theory, give the President "reason to believe" the alien either has or once had some form of tribunal-triggering involvement with some international terrorist organization. (13) The Order expressly covers all those who have ever "aid[ed] or abet[ted]" terrorists "or act[ed] in preparation []for" terrorism. (14) In contradistinction to its harboring provision, which covers only those who "knowingly harbored" terrorists or members of al Qaeda, this provision conspicuously contains no mens rea requirement at All. (15) And if the Order is taken to supply the substantive definition of the offenses triable by, as well as to outline the jurisdiction of, the tribunals, then the absence of a mens rea requirement would bring within the Order's sweep a vast sphere of entirely innocent conduct, such as hiring a car for a friend when the friend turns out to be a terrorist, or donating money to a charity when that charity turns out to be a front for terrorism. We hope the Order was not intended to try to criminalize such acts, but its words encourage the broadest of constructions, and its vagueness invites arbitrary and potentially discriminatory determinations as to which categories of persons, or indeed which specific individuals, are to submit to a military trial, and which are to be spared that burden.

   The White House Counsel has promised that the Order would not reach any but "foreign enemy war criminals"--whatever that might mean. (16) The Geneva Conventions limit the ways regular soldiers who surrender or are captured may be treated, and we take it as given that the tribunals contemplated by the Order would be vested with no authority to try soldiers recognizable as such. Only "unlawful combatants"--a category first recognized by the Supreme Court in 1942 but reflecting a long-standing distinction--may be tried in military tribunals. (17) This limitation could pose a problem in a case such as that of captured Taliban footsoldiers whom our military leaders suspect of harboring, or working in close concert with, al Qaeda. Unless such combatants happen to be among al Qaeda's leadership, they are unlikely to have been sufficiently responsible for that group's terrorist acts to count as unlawful belligerents.

   To be considered lawful belligerents, soldiers must "carry arms openly," "have a fixed distinctive emblem recognizable at a distance," and "conduct their operations in accordance with the laws and customs of war." (18) In circumstances in which persons "on the approach of the enemy spontaneously take up arms to resist the invading forces," however, the requirement of recognizable military uniforms is relaxed under international law. (19) This would suggest that some of those fighting on behalf of the Taliban in Afghanistan--and thus some whose status the President has been unwilling to resolve on an individualized basis despite the Geneva Convention's requirement that "any doubt" about status be "determined by a competent tribunal" (20)--might in fact qualify as lawful belligerents and be entitled to relief on habeas corpus from detention other than as prisoners of war with all of the protections that flow from that status. The September 11 hijackers and those reasonably believed to have conspired with them, in contrast, could not so qualify. (21) Again, we assume that the Order reaches only unlawful belligerents (despite the absence of language in the Order so restricting it), but its vagueness on that score is deeply troublesome. (22)

   As such ambiguities reveal, the next steps require legislation if the administration hopes to use military tribunals and defend them from judicial invalidation, especially when many of the acts made subject to their exclusive jurisdiction at the stroke of the President's pen would otherwise fall within the jurisdiction of civilian courts created by Congress and fully capable of adjudicating the cases the President would remove from their ambit. Surely, it is not within the President's power to detain, and to threaten with trial by a...