Military Tribunals: a Constitutional Issue

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After the tragedy of September 11, 2001, President George W. Bush used his powers as Commander in Chief and established a means to prevent future terrorist attacks against the United States. On November 13, 2001, Bush issued a military order (M.O.) which allowed the President’s to “identify terrorists and those who support them” and bring them to justice by way of “military tribunals.” President Bush argues that it is his duty to “protect the United States and its citizens.” The M.O. makes this possible by delineating the rules and procedures for military tribunals held during the war on terror. The legality of Bush’s M.O. immediately became the subject of debate upon its publication. For example, the president argues that he is fully authorized to enforce the use of military tribunals based on the historical precedents set in place by former presidents. He also argues that he is permitted to establish tribunals based on his declaration of “a national emergency on September 14, 2001.” The M.O. order states that “this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency.” By declaring a state of national emergency, Bush suggests that tribunals are now a matter of “military necessity.” Those subject to the order are defined in subsection 2(a)(1) as someone who “is or was a member of the organization known as al Qaeda,” as well as someone who meets the following criteria: “has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy, or [anyone who] has knowingly harbored one or more [of these] individuals”

Nevertheless, the M.O. was highly controversial despite all of the historical precedents, the declaration of a national emergency, and the specifications in section 2(a)(1). In Jennifer K. Elsea’s CRS Report for Congress titled, “The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the UCMJ,” Elsea summarized one of the opposition’s arguments, which is that “the President’s M.O. has been criticized as overly broad in its assertion of jurisdiction, because it could be interpreted to cover non-citizens who have no connection with Al-Qaeda or the terrorist attacks of September 11, 2001.” As this report will show, debates over the definition of an “enemy combatant” as it applies to the war on terror are very complicated. The world is now facing an unidentifiable enemy on an undefined battleground. But the vagueness of the M.O. as far as who exactly it applies to is only one out of the many problems found in Bush’s M.O. Also opposing the M.O. are both members of Congress and the Judiciary as they feel very uncomfortable allowing the President to establish military tribunals for the war on terror. Mainly, the arguments against the President include his disregard for the Constitution and the Uniform Code of Military Justice (UCMJ). This disregard is seen as Bush’s bypassing the military’s courts martial system as well as the United States civilian district courts already in place. In his congressional report titled, “Military Tribunals: Historical Patterns and Lessons,” Louis Fisher clarifies that “one of the principal methods of legislative control over military trials, including tribunals, are the Articles of War that Congress enacts into law.” While the Articles of War have since been combined into a single Uniform Code of Military Justice, it nonetheless remains Congress’ explicit constitutional power to “make rules for the Government and Regulation of the land and naval Forces.” As such, Congress feels that Bush is denying its right to regulate the enforcement of military tribunals. In addition to...
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