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December 19, 2001: Military Tribunals, the Constitution, and the Bill of Rights

Q: I do not understand what is going on with military tribunals and how that fits into the Constitution and the Bill of Rights.

A: Please be patient with my answer, since due to lack of space (and my attempt to keep readers awake) by necessity the following can be only a very sketchy thumbnail response.

Under the Constitution and through Supreme Court cases, the President has been deemed to have the power to protect our national security. From General Washington (pre-nationhood) through Lincoln and on to FDR, Presidents (and even a general or two) have used this authority to establish Military Commissions (also known as tribunals), which have tried and even executed people.

President Bush seems to be following as a guideline a 1942 Supreme Court case resulting from FDR's prosecution of Germans caught in the United States who were accused of planning sabotage.

During the first week of November, the President signed a military order after Congress gave him authority to use all appropriate powers to pursue the terrorists. (There is debate whether a formal declaration of war is needed.)

The President's order permits males from ages 18 to 33 living here on a non-immigrant visa since January 1, 2000, or residing here illegally, to be questioned and then detained if suspected to be a member of Al Qaeda or associated with the September 11th attack. It also applies to anyone who "aided or abetted" or "knowingly harbored" international terrorists.

The President's military order could allow suspects to be tried in secret, without benefit of an attorney, a jury, or the ability to offer evidence. No due process procedures need be established and the right to appeal can be denied (although this is another point of contention in interpreting the 1942 Supreme Court decision). And death is one of the possible verdicts and could be carried out within weeks or months of being detained.

The exact rules and procedure of any military proceeding remain in doubt. Obviously, this whole area is being debated within the legal educational community as to what is constitutionally permissible in the twenty-first century.

Then there is the concern as to whether President Bush would try to expand his military orders.

Jurisdiction is the next practical issue. Of course, it would apply to anyone in the United States that falls within the above-mentioned parameters. For terrorists caught in other countries, even by our military, the local law would be determinative. Most European countries have said they would not extradite if the death penalty was a possibility. Suspects caught in Afghanistan, either by our forces or turned over to us by Alliance fighters, probably could be tried by the military commission since no extradition laws are in place.

In these unfortunate times, President Bush's actions may be a watershed in this area to define once and for all how the military commissions fit into our "modern" constitution.

READER'S ALERT: The promised pop quiz may occur at any time. But in the meantime, let me know some of the common legal phrases that everyone repeats, such as "possession is nine-tenths of the law," or "I'll take this all the way to the Supreme Court." You will probably be surprised at the true legal validity of some of these old legal chestnuts.

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