The Military Tribunal Debate:

See George P. Fletcher's original article "War and the Constitution."

From the February 11, 2002 letters section:

War and the Constitution

Under existing law, President George W. Bush has the legal authority to use military commissions to try certain suspected terrorists for violations of the law of war. In arguing otherwise, George P. Fletcher makes
numerous blunders ["War and the Constitution," January 1–14, 2002].
The key decision is Ex parte Quirin (1942), in which the Supreme Court upheld President Roosevelt's decision to use military commissions to try German saboteurs who had landed on Long Island. The Court concluded that Congress had authorized use of commissions to try violations of the law of war. The Court held that the saboteurs had violated that law, and hence were "unlawful combatants," because they entered the country secretly, without uniform, and with the intent to destroy property. The Court emphasized that unlawful combatants could be treated differently from ordinary soldiers operating in uniform pursuant to an ordinary chain of command.

The Court extended this ruling in In re Yamashita, allowing commissions to try a Japanese general who had participated in atrocities against civilians (also violative of the law of war).

After these cases, President Bush's choice stands on firm legal ground insofar as he seeks to use military commissions to try people who planned and participated in the September 11 attacks (and similar actions). The congressional authorization found sufficient in Quirin is the same law invoked in Bush's order. In rejecting this conclusion, Fletcher misdescribes the law.

Fletcher's key contention is that when civilian courts are open, a military commission cannot be used to try offenses that fall within the civilian courts' jurisdiction. But Quirin rejected that contention in unambiguous terms, saying that this principle had no application to a case involving lawful or unlawful combatants. Fletcher invokes the 1866 decision in Ex parte Milligan as "the leading precedent." But in Quirin, the Court explicitly limited the reach of Milligan, saying that it did not involve a belligerent enemy. Amazingly, Fletcher suggests that Quirin "invented" the category of unlawful combatants. That category was and remains well established in both domestic and international law. ("By universal agreement and practice, the law of war draws a distinction between . . . those who are lawful and unlawful combatants," the Court said, with many citations.) Fletcher urges that it is important to distinguish between Nazi-style violations of moral
decency and other violations of the law of war. For purposes of analyzing the legal issues raised by military commissions, this distinction is not relevant, much less
important.

Fletcher is offering an attack on the Supreme Court's controlling decisions. He is welcome to do so. But it is ludicrous to say that "if the Supreme Court reads its own cases faithfully, it will uphold the rule in Milligan and strike down the conviction of anyone who should have been tried in federal court." Instead of misreading Supreme Court cases, it would be more helpful to narrow the circumstances in which military commissions will be used and to explore how trials, in military commissions or elsewhere, can be made both full and fair.

Cass R. Sunstein

University of Chicago Law School

Chicago, IL

George P. Fletcher attacks a phantom of his own making when he accuses me of wrongly defending the president's order directing the use of military tribunals to prosecute suspected terrorists. That's a peculiar accusation, given the unambiguous conclusion of my Senate testimony that the order is unconstitutional on its face for a wide variety of reasons. Professor Fletcher offers no dissent to my view that "such tribunals may [nonetheless] be justifiable in extremely limited circumstances in which, among other things, the laws of war have been violated." Nor, despite his dismay at my "preaching congressional approval," does he rebut my testimony that some of the "constitutional infirmities that plague the military order" could indeed be remedied by Congress -- principally by specifying the prosecutable offenses legislatively, as the Supreme Court has held mandatory ever since United States v. Hudson and Goodwin (1812); by guaranteeing that convictions may be appealed to a body independent of the executive, as only Congress can possibly do; and by strictly limiting the tribunals' jurisdiction. Fletcher's supposition that it "never occurred" to me that Congress, too, must abide by the Constitution surely was meant in jest.

Seeking a slender reed of support for his assault on misguided "liberal" law professors, Fletcher focuses on the notion of "unlawful combatants" -- persons who, we evidently agree, may be subject to the jurisdiction of
military tribunals. We differ to the extent that he treats this category as a historical anachronism, limited to persons such as the German soldiers who sneaked into the United States in Quirin to "lurk as spies." Can he seriously think the Supreme Court would hold that the Constitution provides greater protection to terrorists who don't merely "lurk" but slaughter civilian populations, using stealth to avoid being shot as enemy combatants perpetrating military aggression? The Quirin Court certainly wouldn't; it expressly equated "the spy who . . . [infiltrates] without uniform" with the "enemy combatant who without uniform" sneaks in to "wag[e] war by destruction of life or property." In any event, Fletcher's claim that such terrorists are entitled to trial by court martial or by an international tribunal hardly squares with his insistence on "the right to a jury trial," which neither of these alternatives satisfies.

Curiously, Professor Fletcher glosses over what seems to me the principal obstacle to analogizing those responsible for September 11 with the Quirin saboteurs: Those Nazi intruders were deemed unlawful combatants because they infiltrated our shores, as the Court stressed, "[a]fter the declaration of war" with Germany. But my doubts about extending Quirin to September 11, and indeed about Quirin itself, have no bearing on the constitutionality of trying al-Qaeda members by military tribunal in Afghanistan for war crimes launched or committed there after we went to war.

Professor Fletcher may be right that someone is "shooting from the hip" here, but it's not me.

Laurence Tribe

Harvard Law School

Cambridge, MA

George P. Fletcher Responds:

Sunstein is still confused about the meaning of the phrase "laws of war" and therefore misunderstands the 1942 Quirin case on which he grounds his argument. The eight spies were not sentenced to death because they violated the law of war by entering our territory with hostile intent. Rather they were convicted, under a preexisting federal statute, for spying near a military facility in wartime. But spying is not, and has never been, a violation of the laws of war. The 1907 Hague Con-vention addresses spying, but only to protect suspected spies against summary executions. The relevance of treating the suspects as "unlawful combatants" -- a phrase apparently first used by the Supreme Court in 1942 -- is that their unlawfully wearing civilian clothes deprived them of combatant status and immunity to criminal prosecution.

There is no basis whatsoever for the inference that President Bush "has the legal authority to use military commissions" for any purpose other than trying suspected spies. No court has ever taken Quirin to be anything but a limited exception to the Milligan principle requiring the use of civilian courts when they are functioning and have jurisdiction. Yamashita does not represent a challenge to this venerable principle because the war crime alleged was not then a crime against the United States.

Tribe is confused not only about the laws of war but about the powers of Congress. He reasons that because the slaughter of civilians is worse than spying, the former category of war criminals are even more worthy of trial by military tribunals. A scholar faithful to the Constitution would argue the opposite: Because the crimes are so serious and our passions are likely to run high, the suspects warrant maximum protection under the Sixth Amendment.

Tribe's views on the powers of Congress are equally topsy-turvy. If Article III and the Sixth Amendment require certain procedures for all criminal cases, Congress cannot ameliorate the president's violating these restrictions simply by making the military tribunals more attractive than they might otherwise be.

With critics like Sunstein and Tribe, the president hardly needs supporters.

From the February 25, 2002 issue:

The following is part two of an exchange among professors Cass Sunstein, Laurence Tribe, and George P. Fletcher in response to Fletcher's article "War and the Constitution," [TAP, January 1–14, 2002]. Part one appeared in the February 11 issue of TAP.

Cass Sunstein Responds:

Disputes about legal technicalities don't make for fun reading; but under the Supreme Court's decision in Ex parte Quirin, President George W. Bush does have the authority to use military commissions to try suspected terrorists. In arguing the contrary, Fletcher suggests that the Quirin Court allowed the defendants to be convicted for spying, not for violations of the laws of war. This is wrong. The Court refused to assess the spying charges and ruled only on the charges involving violations of the laws of war. Fletcher writes that with "critics like Sunstein and Tribe, the president hardly needs supporters." But it makes no sense to be an all-purpose critic of this (or any other) president. When the president acts within his legal authority, law professors should say so.

Laurence Tribe Responds:

Fletcher and I may disagree about important constitutional issues, but his continued insistence on swatting at straw men -- now self-righteously declaring that I am "confused," that my views are "topsy-turvy," and that I am not "faithful to the Constitution" -- disserves everyone involved. Suffice it to say, Fletcher has declined to defend his original false claim that I had endorsed the president's military tribunal order (which I had in fact denounced as unconstitutional in Senate testimony), and I don't see any reason to cheapen further what could have been a valuable exchange of ideas by responding with labels rather than analysis.

Fletcher is simply mistaken in claiming that those accused of terrorism are invariably
entitled to the full protections of the Sixth Amendment because their crimes are "serious" and thus inflame the public's "passions." The public's emotional reaction to terrorism hardly supports trying terrorists before those very juries that might be the least impartial. Nor does it make sense for Fletcher to decry the injustice of denying terrorists trial by jury while he insists that they are entitled to trial in an international tribunal or by court-martial, neither of which affords a jury.

Fletcher also misunderstands Quirin, which upheld use of military tribunals for Nazi saboteurs who had sneaked into the United States to spy and to prepare for future attacks. The Court cited a history, antedating the founding, of submitting such "unlawful combatants" (who use stealth to avoid the risk of being shot on sight) to military tribunals, which afford due process but not the full protections of courts-martial. Fletcher rightly notes the Court's reference to a Revolution-era statute dealing specifically with spies but wrongly asserts that the Court confined its notion of "unlawful combatants" to those whose sabotage was limited to spying. We must surely be cautious in extending Quirin's reach, and I continue to regard the decision itself as dubious. But trying terrorists by commission falls within Quirin's logic not because their crimes are "worse than spying" but because they similarly aim to kill by stealth in what is effectively a time of war.

From the March 25, 2002 letters section:

George P. Fletcher responds to Laurence Tribe and Cass Sunstein:

The country needs a loyal opposition that will speak truth to the power of the Bush administration. Underlying this challenge is a view of the Constitution that stresses the protection of individual rights, the limited powers of both the legislative and executive branches, and the equality of all criminal suspects. We won't find that opposition among "liberal" academics like Laurence Tribe and Cass Sunstein. Tribe claims that Congress could cure the whole problem through legislation authorizing tribunals, yet he never details how Congress might have this authority despite the clear dictates of the Sixth Amendment. Sunstein thinks that an inflated reading of the phrase "unlawful combatant" provides wholesale authority for the tribunals. The American Bar Association has come closer to the mark: In early February, the ABA adopted a resolution insisting on jury trials for terrorists who commit "violations of federal or state" law. This is the mandate of the Constitution and has been my position all along.

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