NCPA - National Center for Policy Analysis

Military Tribunals for Suspected Terrorists?

November 20, 2001

Some libertarians and constitutional scholars worry that President Bush's plan to allow military trials of non-U.S. citizens isn't the way to fight the war on terrorism. Under Bush's recently issued executive order, the Secretary of Defense will set the guidelines for the tribunals, including rules for evidence and standards of proof. There will be no judicial review, and the accused can be convicted and sentence by a two-thirds vote. Critics note that:

  • Even military courts require unanimity in capital cases, provide for appellate review and preserve many Fifth Amendment rights.
  • However, the language of the order may make it possible to deport an individual, without conviction or trial, to a country more inclined to extract information by torture.
  • And it also seems to allow suspension of habeas corpus, although the Bush administration has denied it.
  • Vagueness in the wording of the order might allow prosecution for any offense - drugs, for example - if the tribunal had reason to believe (even without much evidence) that the individual was involved in terrorism.

The Supreme Court held in 1866 in ex parte Milligan that only Congress may declare martial law, during wartime, and subject to judicial review. While Congress passed a resolution on September 14 authorizing "action against those nations, organizations or persons" that planned the September 11 attacks, critics say, the resolution had nothing to say about tribunals. Thus, the Bush order threatens the separation of powers.

Source: Robert A. Levy (Cato Institute), "Don't Shred The Constitution To Fight Terror," Wall Street Journal, November 20, 2001.

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