Military Tribunals are Perfectly Constitutional

John C. Eastman

November 1, 2001

There has been a great uproar ever since President Bush issued his executive order providing that suspected terrorists be tried before a military tribunal rather than a civilian court. Commentators have accused the President of ignoring, even "shredding," the Constitution. But judicial precedent on the subject, and the actual text of the Constitution, strongly support the President’s use of military tribunals in the current circumstances.

First, the Constitution’s text. The Fifth Amendment requires indictment by a grand jury, but specifically excepted from that requirement are "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." In other words, the men and women serving in our own military forces are not entitled to the benefits of trial in civilian courts, nor are civilians serving in the militia when they have been called into service. It would be odd indeed to read the Fifth Amendment as affording greater access to civilian courts to non-uniformed soldiers of terrorism waging war on the United States than it provides to our own soldiers and civilians.

The Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." But it was long ago settled that the Sixth Amendment right to a trial by a petit jury is limited to the same group of people entitled to the benefit of grand jury indictment specified in the Fifth Amendment.

The Constitution assigns to Congress the power to define and punish offenses against the law of nations, of course, and some have argued that the President’s order intrudes upon that power. The President has his own constitutional source of power, though; he is, after all, the Commander-in-Chief, which directly bestows upon him powers in times of military crisis that are not derivative of any power delegated from Congress. Moreover, in Article 106 of the Uniform Code of Military Justice, Congress has itself authorized the President to try anyone acting as a spy by a general court-martial or by a military commission, and in Article 104 has authorized trial by court-martial or military commission of "Any person who aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly." Similar provisions were relied upon by the Supreme Court in the 1942 case of Ex Parte Quirin, when it upheld President Roosevelt’s decision to try by military tribunal rather than civilian court German saboteurs who had come ashore from a German submarine plying the waters off our coast. One of the men tried had been a naturalized United States citizen since childhood, yet that did not alter the fact that he was giving aid to the enemy of the United States and was thus subject to trial by military tribunal.

The Constitution also assigns to Congress the power to declare war and, because it has not done so in the present conflict, some have contended that the UCMJ provisions cited above do not apply. Military tribunals were used extensively in the Civil War, however, and Congress issued no formal declaration of war then, either. Moreover, there is a strong argument to be made that the power to declare war is different than the President’s obligation to recognize when war has been declared on us. His role as Commander-in-Chief and his obligation to take care that the laws be faithfully executed both support his use of war tribunals when, in times of actual war, the defense and safety of the United States requires. Although the Supreme Court did not have to face the issue in Ex Parte Quirin, it strongly intimated that these independent powers of the President were alone sufficient to support President Roosevelt’s use of military tribunals.

Finally, President Bush’s order also provides that a detainee "shall not be privileged to seek any remedy . . . directly or indirectly . . . in any court of the United States." This deprives suspected terrorists of the protections of the writ of habeas corpus, some have decried. The Supreme Court long ago settled that question, too. Civil courts have jurisdiction only to consider whether the military court has jurisdiction; once it is determined that it does, the ability of a civil court to issue a writ of habeas corpus is at an end.

In short, the Constitution’s text as well as historical precedent provide ample support for the President’s decision to utilize military tribunals to try those who would seek to destroy our Constitution by actions that are contrary to the laws of war and the law of nations.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.

"First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.