The Case Against Military Tribunals

By Andrew P. Napolitano


…the public discourse has lost sight of the fundamental principles that guide the government when it makes such decisions. Unfortunately, the government has lost sight of the principles as well.

…When President George W. Bush spoke to Congress shortly after 9/11, he did not ask for a declaration of war. Instead, Republican leaders offered and Congress enacted an Authorization for the Use of Military Force. The authorization was open-ended as to its targets and its conclusion, and basically told the president and his successors that they could pursue whomever they wanted, wherever their pursuits took them, so long as they believed that the people they pursued had engaged in acts of terrorism against the United States. Thus was born the "war" on terror.

…Since 9/11, American agents have captured and seized nearly 800 people from all over the globe in connection with the attacks, and now five have been charged with planning them.

…The casual use of the word "war" has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war.

…The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II.

…The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

…The framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty or property from any person without the intercession of a civilian jury to check the government's appetite and to compel transparency and fairness by forcing the government to prove its case to 12 ordinary citizens….Numerous Supreme Court cases have ruled that any person in conflict with the government can invoke due process -- be that person a citizen or an immigrant, someone born here, legally here, illegally here or whose suspect behavior did not even occur here.  go to article