Why Bush's Resort to Military Tribunals Rests on a Bad Precedent

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Mr. Fisher, Senior Specialist in Separation of Powers with the Congressional Research Service of the Library of Congress, is author of Nazi Saboteurs on Trial: A Military Tribunal & American Law (University Press of Kansas, 2003). Click here for details about the book.

After 9/11, President George W. Bush authorized the creation of military tribunals to try individuals who provided assistance for the terrorist attacks in New York City and Washington, D.C. In an op-ed piece with Andrew G. McBride, former Attorney General William P. Barr referred to the Nazi saboteur case of Ex parte Quirin (1942) as the "most apt precedent." Vice President Dick Cheney argued that terrorists, because they are not lawful combatants, "don't deserve to be treated as a prisoner of war." He spoke favorably of the treatment of the German saboteurs, who had been "executed in relatively rapid order."

There is a world of difference between the military tribunal created in 1942 and the tribunals authorized by President Bush. After the capture of eight Germans who arrived on two submarines in June 1942, President Franklin D. Roosevelt issued a proclamation to create a military tribunal to try the men. Roosevelt therefore targeted eight specific individuals.

The Bush military order covers a much larger universe: any individual who is"not a United States citizen" (about 18 million inside U.S. borders) who gave assistance to the September 11 terrorists. The president need only determine that there is"reason to believe" the person is or was a member of al Qaeda,"has engaged in, aided or abetted, or conspired to commit, acts of international terrorism," caused injury to U.S. national security, foreign policy, or the economy, or has"knowingly harbored" one of more individuals described in the Bush order. FDR looked backward at a handful of known saboteurs who had confessed. Bush looked prospectively to 18 million noncitizens and resident aliens who had yet to be apprehended or charged.Bush and Cheney field questions from the press

Under the Bush order, the threat of prosecution hangs over a huge population. The extent to which this group is at risk depends on presidential "determinations" and definitions of such phrases as "international terrorism" and "knowingly harbor." "Aiding or abetting" could involve innocently contributing money to a group that seemed to be a legitimate charitable or humanitarian organization, which later the administration concludes operates as a front by providing assistance to al Qaeda or other terrorist bodies.

Cheney's distinction between unlawful combatants and prisoners of war relies on Ex parte Quirin. The Supreme Court distinguished between "lawful combatants" (uniformed soldiers) and "unlawful combatants" (enemies who enter the country in civilian dress). The former, when captured, are detained as prisoners of war. The latter are subject to trial and punishment by military tribunals. The Court made it clear that a U.S. citizen who associates himself with the military arm of an enemy government and enters the United States for the purpose of committing hostile acts is an enemy belligerent subject to military tribunals.

This judicial decision has little to do with the Bush military order, which specifically exempts U.S. citizens from the jurisdiction of military tribunals. What of Bush's decision to designate Yasser Esam Hamdi and Jose Padilla as an "enemy combatant"? Is that covered by the Nazi saboteur case? There is little relationship. According to the Bush administration, whoever fits the category of enemy combatant is held but not charged, is denied the right to an attorney, and (according to the Justice Department) federal judges have no right to interfere with executive judgments.

Compare that to the eight German saboteurs, who were charged by the government, granted counsel, and tried by a military tribunal. They even filed a petition of habeas corpus in federal district court, eventually arguing their case before the Supreme Court over a two-day period, totaling nine hours of oral argument. In sharp contrast, Hamdi and Padilla are held in a naval brig, with no charges brought against them, no access to counsel, and no prospect of a trial, either civil or military.

Ex parte Quirin is far from an attractive precedent. The Justices were poorly prepared to hear the case. The briefs are dated the same day that oral argument began. There was only a cursory district court decision, issued the evening before, and no action yet by the D.C. Circuit. The Court handed down a short per curiam on July 31, but without any legal reasoning. Three months later the Court released a full opinion, but by that time six of the eight Germans had been electrocuted. The Court could hardly cast doubt on the legality or propriety of their executions, much less grant relief.

The conduct of the trial in 1942 so offended Secretary of War Henry L. Stimson that he intervened forcefully three years later, when Roosevelt established another tribunal to try two saboteurs who arrived by submarine from Germany. Unlike the military order of 1942, Roosevelt did not name the members of the tribunal or appoint the counsel for the prosecution and defense. Instead, he empowered the commanding generals, under the supervision of the secretary of war, to appoint the tribunal. Moreover, the trial record did not go to Roosevelt, as it did in 1942. The review was processed by professionals within the judge advocate general's office.

The 1942 process was badly crafted. Roosevelt created the tribunal, picked generals (subordinate to him) to serve on the tribunal, appointed the prosecutors and defense counsel (all subordinate to him), and when the tribunal completed its work, the trial record went to Roosevelt for final review. Stimson thought it made no sense for Attorney General Francis Biddle and Judge Advocate General Myron Cramer to serve as prosecutors. Why should an attorney general spend a month prosecuting eight saboteurs? Cramer should not have been co-prosecutor. His function was to perform a reviewing role to assure fairness.

For the two saboteurs who arrived in late 1944, Stimson succeeded in removing Biddle and Cramer as prosecutors. Trained military professionals handled the prosecution in early 1945. Stimson also saw that the trial took place not in Washington, D.C., with the circus atmosphere of 1942, but at Governors Island, New York City. Justice Felix Frankfurter, a member of the 1942 Court, later said that "the Quirin experience was not a happy precedent."

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mark safranski - 10/10/2003

A lot of Supreme Court decisions may be poorly argued ( Roe v. Wade) or well-argued but politically disastrous and morally wrong( Dred Scott). It doesn't really matter because until they are overturned they remain operative and binding on lower courts.

FDR could also, at any time, have issued new executive orders regarding saboteurs so Quirin merely recognized the extent of the President's authority in wartime as commander-in-chief to deal with enemy combatants. It revised Ex Parte Milligan which was decided in the far murkier circumstances of a civil, not foreign, war.

Quirin was heard not only in a war atmosphere but during an actual war and the defendents, who had no complaint regarding due process, were swiftly executed and rightly so. In contrast, Mr. Hamdi who was captured fighting on a foreign battlefield with the enemy, has been treated with kid gloves. If anything Bush's executive order regarding war criminals fighting out of uniform is far, far milder than what the United States could apply under Quirin or mete out under the Geneva Convention.

In fact, if Bush wished to strictly apply those standards, most of the captives at Guantanamo would long-since be dead at the hands of a firing squad. Not all, but most.