War and the Constitution
Bush's military tribunals haven't got a legal
leg to stand on.
by George P. Fletcher
The American Prospect magazine, January 2002
The media are awash in disinformation about military tribunals.
Since November 13, when President George W. Bush issued his controversial
executive order mandating the use of military commissions to prosecute
suspected terrorists, one farfetched claim of law has followed
another. The president's lawyers have every right to put the best
possible light on their plans for sidestepping the criminal courts.
My problem is with the academic lawyers whose offhand opinions
fill the op-ed pages and the ears of Congress. Their din reached
its climax when two important legal scholars-Laurence Tribe of
Harvard and Cass Sunstein of the University of Chicago-testified
as "liberals" before the Senate Judiciary Committee
that Bush's tribunals would be compatible with the Constitution.
Of course, everybody these days is responding under pressure,
but the law professors have been giving "shooting from the
hip" a bad name.
Any serious examination of the sources-statutes and Supreme
Court cases-should lead a fair-minded scholar to the opposite
conclusion: There is no law available to support the proposed
Bush tribunals. Leave aside whether the tribunals would be good
or bad, kangaroo courts or simply streamlined procedure; the president
has no authority to create them.
Tribe argued recently in The New Republic that "in wartime,
'due process of law,' both linguistically and historically, permits
trying unlawful combatants for violation of the laws of war, without
a jury." This single sentence captures many of the mistakes
that run, like viruses, through the debate in the press. But let
us begin with the fundamental question of whether the Constitution,
as Tribe suggests, is different in wartime versus peacetime. In
the words of the Supreme Court's 1866 ruling Exparte Milligan,
the leading precedent on this issue: "[T]he Constitution
was intended for a state of war, as well as a state of peace,
and is equally binding upon rulers and people at all times and
under all circumstances." When the Sixth Amendment mandates
that in "all criminal prosecutions" certain rights should
apply, including the right to a jury trial, the framers mean what
they say. And the Supreme Court has understood the injunction.
It is undisputed law that if the civilian courts are open and
functioning, the armed forces cannot convene a military commission
or tribunal to try offenses that fall within the civilian courts'
True, Chief Justice William H. Rehnquist wrote in his 1998
book All the Laws but One that in the time of a declared war the
government has greater authority to infringe civil liberties.
For example, the government can deport enemy aliens. But these
infringements on the status of enemy aliens do not affect their
right to be tried in civilian court for committing a crime in
the United States. The fact of "wartime" does not change
the meaning or scope of due process-either linguistically or historically.
The second basic point that we should clarify in order to
think straight about criminal justice a la Bush and Attorney General
John Ashcroft concerns "unlawful combatants"-the term
that Tribe uses to explain the category of people that can be
tried by simplified procedures for "violation of the laws
of war." This phrase, "unlawful combatant," appears
all over the place as though it could be the talisman that saves
The Supreme Court first used the term in 1942 in Ex parte
Quirin to solve a particular problem that arose when eight German
spies landed in civilian clothes on the beaches of Long Island.
The FBI arrested them before they executed any of their planned
acts of sabotage. President Franklin D. Roosevelt was resolved
to prosecute them for something, and it turned out that there
was a suitable law on the books-a provision of the U.S Code prohibiting
spying in wartime near or around American military installations.
That statute required trial by either court-martial or military
tribunal and imposed an automatic penalty of death. Roosevelt
quickly established the military tribunal that the statute authorized,
but the constitutional dilemma remained. To see it, we have to
concentrate on one horn at a time.
The first problem was that these spies were members of the
German army. We were at war with Germany and therefore the eight
captives were arguably just like soldiers who might have crossed
the Canadian border in tanks. And if they were combatants, then
by the rules of international law we were not entitled to try
them for acts committed in the pursuit of legitimate aims of war.
As Chief Justice Harlan Fiske Stone wrote for the Supreme Court
in Quirin: "Lawful combatants are subject [only] to capture
and detention as prisoners of war by opposing military forces."
The reason for this rule lies in the general understanding that
a soldier is simply a servant of the state. He does not do anything
in his own name. He cannot be held personally liable for the ravages
Now, admittedly, there are various ways around the rule. One
is to deny that the military engagement is a war and call it instead
some kind of police action. But the danger of trying too hard
to deny the combatant status of those engaged in military battle
is that we then encounter the second horn of the dilemma:
If these are merely criminals who have committed crimes against
the United States, they must be tried in a federal district court.
That is the holding in the 1866 decision Milligan. In fact, it
seems to be the tack taken by Harvard University law professor
AnneMarie Slaughter, who argued against Bush's tribunals in The
New York Times, saying that al-Qaeda members fighting in Afghanistan
are really just "common criminals" and shouldn't be
dignified with the status of combatants.
Here, then, was the quandary faced by the Supreme Court in
1942: Either the eight German spies were combatants or they had
to be tried in federal district court-with full procedural protections-for
their apparent conspiracy to commit sabotage. To find a way out
of this predicament, the Court invented the category of "unlawful
combatant." Eureka! The spies fell conveniently between the
stools of international law (no trial for combatants) and the
rule in Milligan (an obligatory trial in available civilian courts);
thus, they could be tried in Roosevelt's tribunal. The soldiers
were "unlawful" because they wore civilian clothes when
they slipped behind enemy lines to spy. They did not deserve to
be treated as combatants exempt from prosecution because by virtue
of their deception they had not run the risk that all combatants
run, namely of being shot when they cross into enemy territory.
But if there is one idea that those now commenting on Bush's
proposed tribunals systematically distort, this is it. They use
the word "unlawful" as if it were the equivalent of
"violating the laws of war." Recall Tribe's line: "In
wartime, 'due process of law'...permits trying unlawful combatants
for violation of the laws of war." His logic seems to be
that any soldier who commits a war crime would be an unlawful
combatant and subject to trial by military tribunal.
Alberto Gonzales, the chief White House counsel, betrayed
the same root mistake when he addressed the American Bar Association
in late November. He tried to demonstrate the limited scope of
the tribunals by saying that the administration was only after
"enemy soldiers." Then someone reminded him that enemy
soldiers are protected by the Geneva Conventions and cannot be
prosecuted at all. He corrected himself by saying that tribunals
were after "unlawful combatants." He, too, seems to
believe that the category of "unlawful combatant" is
so broad that it includes anyone the administration might want
to prosecute in a special tribunal-anyone who has done something
unlawful and is a combatant. But that is not the meaning of the
Much of the confusion arises from the failure to recognize
that there are two bodies of law-both called "the law of
war." To understand the difference between them, we have
to think ourselves back into the period before the Nuremberg trials,
before the Japanese war-crime trials, when the law of war was
not primarily about crimes; it was about how you conducted yourself
as someone embedded in a chain of command and therefore qualified
for the immunity from prosecution promised to combatants. It meant,
among other things, that you had to wear a uniform, fight with
your company, and cease fighting when the army surrendered.
During World War II, the "law of war" came to refer
primarily to war crimes that violated basic principles of morality
and decency. But when the Quirin case was decided, that transformation
had not yet become apparent. There was nothing immoral-by contemporary
standards-about the Germans spying in the United States. The Americans
would surely have done the same thing in enemy territory (and
probably did if they were smart). Perhaps there was something
duplicitous about crossing enemy lines in civilian clothes, but
one could hardly imagine bringing a case to The Hague on those
grounds. Quirin did not incorporate the universal standards of
morality that we now associate with the principles of the Geneva
Conventions and the Rome Statute of July 1998 proposing an International
The key case in the transition to the modern law of war was
the ~946 appeal to the U.S. Supreme Court by the Japanese General
Tomoyuki Yamashita. A military tribunal in the Philippines, established
by the postwar commander of the islands, Lieutenant General Wilhelm
Styer, had charged Yamashita for allowing his troops to go on
a rampage and commit atrocities against local civilians. The military
tribunal had invented a new war crime that amounted, in effect,
to a commander's negligent supervision of his troops, and the
Supreme Court affirmed that it could do so. Thus was born the
idea of a war crime under the law of war.
If President Bush had a precedent on his side of the argument,
it would be Yamashita v. Styer. According to this case, he surely
has the power to use tribunals to prosecute war crimes (in the
modern sense) that-like the atrocities in the Philippines- occur
entirely outside the jurisdiction of the United States courts.
Anyone who looks into the Yamashita case, however, will find that
it stands together with Korematsu v. United States, the 1944 decision
upholding the military internment of American Japanese, as one
of the disgraceful episodes of World War II jurisprudence. Among
other things, the Yamashita decision violated the Geneva Convention
of 1944, which provides that prisoners of war may be convicted
and sentenced "only by the same courts and according to the
same procedure as in the case of persons belonging to the armed
forces of the detaining Power."
In other words, General Yamashita and every foreigner suspected
of a war crime should have received the same procedural protection
as was available in an American court-martial. (Thus, under the
Geneva Conventions, Bush's executive order mandating military
tribunals is unacceptable because it permits, among other things,
a death sentence based on a two-thirds vote, while an American
court-martial requires a unanimous vote.) The weakness of the
Supreme Court's reasoning in Yamashita is exposed in stinging
dissents by Justices Frank Murphy and Wiley Rutledge.
It is not surprising, then, that in the current discussion
no one invokes the precedent of Yamashita. But even if those who
argue for the president's tribunals wanted to invoke the case,
they would have to contend with the fact that General Yamashita
was not subject to prosecution in the federal courts for acts
committed in the Philippines against the local population. The
implication of the Yamashita case is that Taliban and al-Qaeda
fighters who are taken prisoner could be prosecuted by military
tribunals (or more properly by American courts-martial) but only
for war crimes committed in Afghanistan. As for suspects who allegedly
participated in a conspiracy to commit the crimes of September
1l, they are liable for a crime on American soil and are therefore
subject to prosecution in the federal courts. In the end, Yamashita-whether
it is still good law or not-does not help the president's case,
for the precedent is limited to cases beyond the competence of
the American civilian courts.
To return, however, to the two different meanings of the law
of war, what we've seen since World War II is a remarkable shift
in emphasis from the law of war as a set of rules about fair fighting
to the law of war crimes as a set of norms about decent behavior
toward civilians and prisoners of war. And those who argue in
favor of the president's tribunals typically confound the two.
Because military tribunals do have jurisdiction over unlawful
combatants, as the Quirin decision established, proponents claim
that military tribunals can prosecute war crimes, or violations
of the law of war in the modern sense. For example, in his testimony
to the Senate Judiciary Committee, Cass Sunstein cited Quirin
as though it were sufficient in itself to establish the constitutionality
of Bush's tribunals.
Here is how Ruth Wedgwood, a Yale University law professor,
defended the president's order in The Wall Street Journal: "Military
courts are the traditional venue for enforcing violations of the
law of war. " The statement is true if she is talking about
Quirin-type violations of the law but grossly misleading if the
focus is on war crimes in the modern sense. There is no tradition
or constitutional authority legitimating trial by a military tribunal
when the crime is subject to prosecution under American law and
the appropriate American courts are open and functioning. And
ever since the postwar period, anyone suspected of a grave breach
of the Geneva Conventions against American nationals is, bylaw,
subject to prosecution in a federal district court.
One of the disconcerting aspects of tribe's testimony to the
Senate Judiciary Committee is that he preached congressional approval
as a way of remedying the defects in the Bush executive order.
It never occurred to him, apparently, that Congress has no clear
constitutional basis for adding to the very limited categories
of crimes committed under American law that can be prosecuted
in military tribunals.
In fact, the Bill of Rights guarantees a civilian court trial
to anyone accused of crimes in violation of federal statutes,
with only two historically entrenched exceptions. One is court-martial
jurisdiction over the U.S. armed forces and the other is the limited
case of spying upheld in the Quirin case. Yamashita does not count
here because it attaches to crimes committed outside the jurisdiction
of American courts.) The narrow exception for court-martial jurisdiction
is made explicit in the Fifth Amendment ("except in cases
arising in the land or naval forces"), and the Supreme Court
justified the narrow exception for the spying statute on the ground
that military tribunals for spying functioned before the nation's
founding and therefore were "grandfathered" into the
Contrary to Sunstein's testimony, there is no general exception
recognized in American law for war crimes committed against civilians.
In fact, since World War II, all war crimes committed by U.S.
troops or against American nationals have been federal offenses
subject to the jurisdiction of the federal courts. Nor can you
make the Quirin argument that jurisdiction over these crimes antedates
the Constitution, for there were no war crimes (in the post-Nuremberg
sense) at the time and there was certainly no war crime based
on attacks against the civilian population. Also, it is worth
noting that in the language of the spying statute-which provides
the only congressionally authorized military tribunal to date-Congress
took pains to bring the crime within the framework of court-martial
jurisdiction. The offense is described in the statute as "lurking
as a spy" in or around a military facility. This falls within
the penumbra of court-martial jurisdiction over military bases.
The arguments concerning congressional authority do not satisfy.
And if there is a good argument for the president's having inherent
authority to establish the tribunals, I have yet to hear it. Ruth
Wedgwood made a stunningly inaccurate claim in The Wall Street
Journal that the president has implied power as commander in chief
to set up military tribunals. She said this principle is "acknowledged
by Chief Justice Stone in a 1942a opinion." The opinion she
was referring to is-once again-the Quirin case, and here is what
the chief justice actually wrote: "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."
Who knows what she could have been thinking.
Wedgwood also claimed that Congress has already "agreed"
to the president's power to invoke military tribunals. This, too,
is false. The most Congress has ever done is recognize the possible
existence of military tribunals. For instance, a provision of
the 1950 Universal Code of Military Justice recognizes the authority
of the executive branch to prescribe rules of evidence for military
courts, including existing and authorized military tribunals.
But that law does not grant the president authority to convene
tribunals, and it specifies no criteria as to when a tribunal
should hear a case that would otherwise go to the regular civilian
The fact is that the president has no apparent authority to
convene military tribunals for the crimes of September 1l. Of
course, we do not know the circumstances in which the Defense
Department will try to invoke this power to sentence supposed
international terrorists to death. When it does, though, we can
be sure that there will be litigation; and if the Supreme Court
reads its own cases faithfully, it will uphold the rule in Ex
parte Milligan and strike down the conviction of anyone who should
have been tried in federal court.
In the meantime, the very existence of the executive order
of November 13 is creating an international scandal. European
countries refuse to extradite suspects to us on the ground that
they can be sentenced to death in summary proceedings. And an
argument is in the offing that the very threat of capital punishment
against "enemy soldiers," the phrase that Alberto Gonzales
let slip, can constitute a war crime by the United States. According
to the Rome Statute, it is a crime for one army to declare that
"no quarter will be given" to the other side. Enemy
soldiers, in other words, have the right to surrender without
being harmed. Yet if we threaten them with the death penalty by
summary proceedings, we are in effect depriving them of their
right to a safe surrender and thus declaring that "no quarter
will be given."
The irony is that the administration has ably pursued its
war aims. In this area of demonstrating respect for the Constitution
and international law, however, it has failed miserably. Perhaps
that is because the Bush team has been uncertain whether they
are fighting a war or trying to arrest those who financed and
organized the attacks of September 11. They cannot quite decide
whether this was a collective crime of al-Qaeda and the Taliban,
in which case war is the proper response, or the individual crime
of Osama bin Laden and other as yet unidentified individuals,
in which case a criminal prosecution is the correct action. The
military tribunals offer a halfway-house approach that they may
see as prosecuting the war while also bringing the bad guys to
Sooner or later, however, despite the failure of our "liberal"
law professors, the truth will win out: The prosecution of suspects
for crimes committed on American soil must-if the charges were
not prosecuted in tribunals at the time of the Constitution-come
before the federal courts. Neither the president nor Congress
has the authority to suspend that constitutional guarantee.
GEORGE P. FLETCHER i5 Cardozo Professor of Jurisprudence at
the Columbia University School of Law. He is the author, most
recently, of Our Secret Constitution: How Lincoln Redefined American
Civil Liberties watch