Security and Privacy
Response to Sept. 11, 2001 Terrorist Attacks

President Bush's Order on Military Trials of Non-Citizens: Beyond His Constitutional or Statutory Authority

By Kathleen Clark*

On November 13th, President Bush signed an order authorizing the creation of military tribunals to try non-citizens alleged to be involved in international terrorism against the United States or the al-Qaida network.1 These military tribunals are troubling in many respects, particularly in their denial of basic due process protection for defendants. But even apart from this question of civil liberties, this Presidential order is unconstitutional because the President lacks the authority under the Constitution and statutory law to create this kind of court.

Trials by military tribunals, like trials by civilian courts, involve the exercise of judicial power.2 The Constitution vests the judicial power "in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish."3 A military tribunal, like other tribunals, must be authorized by either the Constitution or by Congress. Congress has established military tribunals (courts-martial),4 but has limited their jurisdiction, primarily to offenses committed by members of the armed forces.5

In ex parte Milligan, the Supreme Court overturned the conviction of a civilian by a military tribunal because the tribunal had not been authorized by Congress or by the Constitution.6 The civilian, Lamdin P. Milligan, was arrested in Indiana during the Civil War, and charged with conspiring to seize munitions, liberating prisoners of war, and communicating with the enemy.7 After a military tribunal convicted Milligan and sentenced him to death, the Supreme Court reviewed his habeas petition. The Court found that neither the Constitution nor any statute authorized a military trial of a civilian where the civil courts were in operation.8 The Court also rejected the government's argument that the military trial was justified under "the 'laws and usages of war.'"9 The Court held that even a crisis such as the Civil War did not justify a military trial for a citizen not connected with the armed forces, as long as the civilian courts were in operation. "The Constitution of the United States is a law for rulers and people, equal in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."10

In some situations, Congress has authorized the creation of military commissions to try certain individuals who are not members of the armed forces. For example, the predecessor to the Uniform Code of Military Justice, the since-repealed "Articles of War," authorized a trial by military commission of anyone who aided spies or the enemy during wartime.11 Unlike most of the Articles of War, these two provisions explicitly applied not only to members of the armed forces, who are traditionally within the jurisdiction of the military justice system, but also to non-members who commit these acts. It was these two statutory provisions that provided authority for President Roosevelt's executive orders establishing a military commission to try the eight German saboteurs who entered the United States through covert landings in Florida and Long Island, and were tried by military commission in the summer of 1942.12 Although the saboteurs challenged the military commission's jurisdiction to try them, the Supreme Court found that the above-referenced Articles of War authorized such a trial.13

The Presidential Order of November 13th purports to find authority in several sources: the President's constitutional authority as Commander in Chief of the Armed Forces,14 the Joint Resolution Authorizing the Use of Military Force,15 and two provisions of the Uniform Code of Military Justice.16 None of these, however, authorize the creation of this type of military tribunal.

First, the President's power as Commander in Chief of the Armed Forces does not authorize him to create military tribunals to try non-citizens for crimes that can be tried in civilian courts. As the Supreme Court explained in ex parte Milligan, military tribunals for non-military personnel "cannot [be] justif[ied] on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is 'no unwritten criminal code to which resort can be had as a source of jurisdiction.'"17

Second, the Joint Resolution authorizes the President to use "force against those nations, organizations, or persons" that were involved in the terrorist attacks on September 11th, and "to prevent future actions of international terrorism against the United States" by them.18 Thus, Congress provided statutory authorization for the President's recent actions sending troops to Afghanistan, calling up the reserves, and deploying National Guard troops at airports. The Resolution is absolutely silent about any kind of military tribunal. It says nothing about the proper means of bringing to justice those involved in the September 11th terrorist attacks or other acts of terrorism.

The President's Order also cites two sections of the Uniform Code of Military Justice, Sections 821 and 836 of Title 10, U.S. Code. But these sections do not authorize secret military tribunals. Section 821 does not authorize any military commission, but simply clarifies that if such a commission is otherwise authorized "by statute or by the law of war," then the existence of the courts-martial does not deprive military commission of jurisdiction.19 Section 836 simply delegates to the President the authority to prescribe rules of evidence and procedure for courts-martial and military tribunals.20 Thus, if Congress had authorized a special military tribunal for international terrorists, Section 836 would authorize the President to create the rules for such a tribunal. But 836 does not itself authorize such a tribunal.

The Executive Branch may be relying on the precedent of the case involving German saboteurs, ex parte Quirin, to justify this new Presidential Order. However, this comparison is inappropriate for several reasons. In 1942, the Executive Branch could point to a statute that specifically authorized military trials for spies caught during wartime.21 Today, the Executive Branch can point only to statutes through which Congress has authorized terrorists to be tried in the regular federal courts. In recent years, Congress has regularly expanded federal criminal court jurisdiction to cover more terrorist offenses. For example, the Omnibus Diplomatic Security and Antiterrorism Act of 1986 ensured that the federal criminal courts would have extraterritorial jurisdiction over terrorist acts abroad against U.S. nationals.22 The Antiterrorism and Effective Death Penalty Act of 1996 created a new offense for acts of terrorism transcending national boundaries.23 The USA Patriot Act of 2001 further expands federal criminal prohibitions on terrorism.24

Congress has made clear through these enactments its desire to bring terrorists to justice in the federal courts. The President does not have the power to engage in Executive Branch legislating by issuing an order contrary to these laws.25


* Professor of Law, Washington University in St. Louis.

1. 66 FED. REG. 57831 (2001).

2. "Every trial involves the exercise of judicial power." Ex parte Milligan, 71 U.S. 2, 209 (1866).

3. U.S. CONSTITUTION, art. II, 1.

4. See 10 U.S.C. 816 et seq.

5. 10 U.S.C. 802 (listing persons subject to the Uniform Code of Military Justice). See also Edmund M. Morgan, Court-Martial Jurisdiction Over Non-Military Persons Under the Articles of War, 4 MINN. L. REV. 79 (1920).

6. 71 U.S. 2 (1866).

7. 71 U.S. at 5.

8. Id. at 210 ("One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress.")

9. Id. at 210.

10. Id. at 209.

11. 10 U.S.C. 1553, 1554 (Articles 81 & 82 of the Articles of War, repealed by Pub. L. 84-1028 (1956)). 10 U.S.C. 1553 provided: Whosoever relieves or attempts to relieve the enemy with arms, ammunition, supplies, mondy, or other thing, or knowingly harbors or protects or holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court martial or military commission may direct.

10 U.S. C. 1554 provided:
Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court martial or by a military commission, and shall, on conviction thereof, suffer death.

12. Proclamation 2561 (July 2, 1942), 7 FED. REG. 5101 (1942); Appointment of a Military Commission (July 2, 1942), 7 FED. REG. 5103 (1942); Ex parte Quirin, 317 U.S. 1 (1942).

13. 317 U.S. at 10 ("Articles 81 and 82 [then codified at 10 U.S.C. 1553, 1554] authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying.").

14. U.S. CONSTITUTION, art. II, 2.

15. Pub. L. 107-40 (Sept. 18, 2001).

16. 10 U.S.C. 821, 836.

17. 71 U.S. at 210.

18. Pub. L. 107-40 2(a) states:
[T]he President is authorized to all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

19. 10 U.S.C. 810 states in full:
The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals. (emphasis added).

20. 10 U.S.C. 836 states in full:
(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter. (b) All rules and regulations made under this article shall be uniform insofar as practicable.

21. 10 U.S.C. 1554. (Repealed)

22. Pub. L. 99-399, 1202, creating 18 U.S.C. 2331.

23. Pub. L. 104-132, 702, creating 18 U.S.C. 2332b.

24. Pub. L. 107-56, 802, 803, 805, 808, amending 18 U.S.C. 2331, 2339, 2339A, 2339B.

25. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (striking down President Truman's Executive Order taking possession of steel mills during the Korean War because Congress had refused to grant the President this authority).