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There is an important and memorable
difference between power and wisdom. In light of Quirin,
and depending on the procedures eventually adopted by the Secretary
of Defense, it may well be that the military tribunals created
by President Bush meet with the approval of the Supreme Court.
To that extent, the tribunals may be a lawful exercise of executive
power. And in light of Eisentrager, it may also be that
the tribunals, if they convene overseas, will be insulated from
constitutional challenge, in which case their legality may never
be tested. But while the United States may have this power, whether
we are wise to wield it is a far more vexing question.
Before considering that matter, I note that the constitutional
question is hardly free from doubt, despite Quirin and
Eisentrager. In Quirin, after all, President Roosevelt
acted pursuant to a formal declaration of war, accompanied by
congressional authorization that explicitly contemplated the
use of military tribunals. Here, by contrast, we have neither
a formal declaration of war, nor congressional authorization
for military tribunals. Whether the President has exceeded his
authority, therefore, is a substantial and open question, unresolved
by Quirin. Indeed, the Court in Quirin said as
much: "It is unnecessary for present purposes to determine
to what extent the President as Commander in Chief has constitutional
power to create military commissions without the support of congressional
legislation. For here Congress has authorized trial of offenses
against the law of war before such commissions." Ex Parte
Quirin, 317 U.S. at 29.
Furthermore, and perhaps more fundamentally, both Quirin
and Eisentrager involved the trial of "enemy aliens"
-- a term of art referring to the citizens of a foreign government
at war with the United States. Despite our animosity toward Osama
Bin Laden, the Taliban, and Al Qaeda, we do well to remember
that the United States is not at war with any recognized foreign
government, including Afghanistan. (The United States never recognized
the Taliban, and had always remained allied with the former ruling
government of Afghanistan).
And because we are not at war with a recognized foreign government,
none of the detainees that may be subject to trial by military
commission are "enemy aliens." Throughout the nation's
wartime history, aliens within this special class have been denied
constitutional and statutory rights routinely extended to others.
But according to published reports, most of the detainees are
citizens of countries with which we are allied, including Saudi
Arabia, Pakistan, and Egypt. Zacarias Moussaoui, recently indicted
in Virginia, is French. It is extremely unlikely that citizens
of our allies become "enemy aliens" simply by their
criminal conduct, particularly in the absence of a formal declaration
of war. Could the President authorize trial by military tribunal
for leaders of a Colombian drug cartel, merely by the expedient
of reaffirming the previously declared "war on drugs"?
The question seems to answer itself, and suggests the constitutional
issue in this case is not easily resolved.
And then there is the matter of the 8th Amendment. Both Quirin
and Eisentrager were decided long before 1972, when the
Supreme Court recognized the 8th Amendment as a source of substantive
protections in capital cases. May the United States try, convict,
and execute citizens of our allies, for conduct taking place
in the United States before the tribunals were created, without
regard to the requirements of the 8th Amendment? In closed proceedings,
with only a limited right to appeal? At the very least, we must
concede that Quirin and Eisentrager do not answer
these questions.
And finally, what of the rumblings by some quarters of the Administration
that the military tribunals will convene overseas, perhaps on
a ship at sea? Does Eisentrager suggest that no Article
III court has jurisdiction to consider these unresolved constitutional
questions? Perhaps. But presumably, the Administration would
use the tribunals to try the members of Al Qaeda responsible
for the attacks on the World Trade Center and the Pentagon, and
not merely the lower-level functionaries captured in Afghanistan.
Those responsible for September 11, however, planned and perpetrated
an attack on United States soil, against American targets, just
like the defendants tried and convicted in New York for both
the earlier attack on the World Trade Center, and the coordinated
attacks on the American embassies in Kenya and Tanzania (an American
embassy being considered American territory). This distinguishes
them in a fundamental way from the petitioners in Eisentrager,
whose unlawful conduct took place entirely overseas. The Supreme
Court took great pains in Eisentrager to emphasize their
lack of connection to the territorial United States, and the
holding in Eisentrager may be limited to those rather
unusual facts.
* * * * *
But I leave the jurisdictional and constitutional questions
aside, for however they are resolved, I continue to believe the
tribunals are fundamentally misguided. They are at once unnecessary,
and unwise. They are unnecessary because the United States Government
has demonstrated, time and again, its ability to provide suspected
terrorists with fair trials in a federal court. Against this
record, the criticisms leveled at civilian courts simply do not
stand up to scrutiny.
The claim heard most often is that prosecutors will be forced
to divulge classified information. But of course, this is nonsense,
since federal judges and prosecutors have a number of tools at
their disposal to prevent the disclosure of confidential or classified
information, even, in some cases, to the defendants. The prosecutors
in prior terrorist trials repeatedly invoked these rules, with
the court's approval, to prevent the disclosure of sensitive
information.
Critics also assail what they perceive as hypertechnical rules
of evidence, deriding them as arcane obstacles to the conviction
of the guilty. Aside from the obvious objection to this criticism
-- that it makes a mockery of the presumption of innocence --
the lesson of experience suggests the concern is overblown, since
federal prosecutors in New York and California have tried over
two-dozen terrorists in the past decade, including several members
of Al Qaeda. Every defendant has been convicted. Others claim
the jurors in a civilian trial will be at risk. But federal courts
have long used anonymous juries in sensitive cases, shielding
the jurors' identities even from the attorneys.
And finally, recall that -- to their credit -- the Administration
has decided to try Zacarias Moussaoui, the alleged "20th
hijacker", in a federal court in Virginia. This, it seems
to me, may be the most obvious proof that civilian trials for
the events of September 11 pose no insurmountable obstacles to
the United States Government.
And on this record, it will seem that way to others. It will
seem that federal courts are fully equipped to provide justice.
Unless tribunals build in protections comparable to those employed
in federal court, it will seem -- correctly, I fear -- that the
tribunals have been rigged to ensure, at least, convictions and
lengthy sentences, and, at worst, death sentences. This is particularly
true if the tribunals are structured to take advantage of Eisentrager,
in the apparent hope that an Article III court will not be free
to consider their constitutional shortcomings.
And that is why the tribunals are fundamentally a bad idea. In
the end, they accomplish nothing other than to make it easier
to convict and execute those who we believe committed a series
of horrible acts.
* * * * *
In the final analysis, we distinguish ourselves from those
whose behavior we abhor only by our commitment to the rule of
law -- nothing more and nothing less. We do no service either
to the values we claim are at stake in this contest, or to the
memory of those who died, by sacrificing that commitment simply
to ensure a swift and certain punishment for those we believe
are responsible for grave atrocities. There is no greater fear
than the fear of too much justice, and we should recoil from
the suggestion that the enormity of the crime justifies a retreat
from the very principles that distinguish us from terrorists. |
Joseph Margulies is a principal with the Minneapolis
firm of Margulies & Richman, specializing in civil rights,
criminal defense, and death penalty litigation. He has represented
men and women in capital cases across the country since 1989. |
