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

Lawfulness of Executive Order establishing Military Commissions.

Memorandum to Interested Persons

From: Center for National Security Studies, Kate Martin
Date: November 19, 2001

  1. The Military Commission Order is a violation of separation of powers.

    The executive order violates separation of powers as the creation of military commissions has not been authorized by the Congress and is outside the President's constitutional powers.

    The Constitution specifically vests in the Congress: the power to create judicial tribunals "inferior to the Supreme Court;" "To define and punishŠ Offenses against the Law of Nations; To make Rules concerning Captures on Land and Water; and "To make Rules for the Government and Regulation of the land and naval Forces." Article I, sec. 8.

    When the Supreme Court approved the use of military commissions in World War II, Congress had specifically authorized their use in the Articles of War.

    Attached is a memorandum from Law Professor Kathleen Clark of Washington University in St. Louis concluding that President Bush's executive order authorizing military commissions is not authorized under the Constitution or any statute.

  2. The broad application of the military commission order would be unconstitutional even if authorized by the Congress.

    The Supreme Court in World War II approved the use of military commissions to try "unlawful belligerents" for acts in violation of the laws of war when the United States was in a state of war.

    The executive order covers anyone the President decides has engaged in or conspired to commit acts of international terrorism or acts in preparation therefore, a much broader category of individuals or offenses than could be constitutionally tried by a military commission.

    If the Congress recognized a state of war between the United States and Al Qaeda and the Taliban and authorized the use of military commissions, Supreme Court precedent would approve their use only for individuals who had responsibility for the attacks on the World Trade Center or any other acts in violation of the laws of war.

  3. The authorization of military detention of aliens inside the United States on the say-so of the President is also an unconstitutional end-run around the provisions of the USA Patriot Act.

    In addition to military commissions for individuals captured overseas, the order authorizes detention of aliens inside the United States believed by the President to be involved in terrorism. This part of the order is a deliberate end-run around the provisions of the Patriot Act concerning such detentions, which limits the conditions and time under which individuals may be detained. The Executive Order attempts to authorize what the Congress rejected in the first administration draft of the anti-terrorism bill. It is a deliberate end-run around the limits and restrictions agreed to by the administration in negotiating the detention provisions of the Patriot Act. .

  4. The Executive Order is an unconstitutional attempt to suspend the writ of habeas corpus.

    The Executive Order attempts to eliminate any judicial review in the broadest possible language. It states that military commissions "shall have exclusive jurisdiction" of offense and that individuals "shall not be privileged" to seek any remedy in any court. Despite Ari Fleischer's disavowal, the language is obviously an attempt to suspend the writ of habeas corpus. The use of the extraordinary phrase an "individual shall not be privileged" to go to court refers to the language in the Constitution prohibiting suspension of the "Privilege of the Writ of habeas Corpus", Art. 1, sec. 9.

  5. If Congress were to recognize a state of war and authorize the use of military commissions, such commissions must act in accord with both constitutional guarantees and international law.

    While the Congress could constitutionally authorize the use of military commissions, such commissions would have to accord charged individuals basic due process rights in accordance with the Constitution and the legal obligations of the United States under the International Covenant for Civil and Political Rights.

    Moreover, the creation of such commissions would have to be consistent with the international legal framework established by the United Nations charter and subsequent instruments, none of which were in existence at the time the Supreme Court approved the use of World War II commissions.