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Monday, November 18, 2002
There is an underreported story about the Bush Administration's plan to use military commissions to try terrorist suspects. The Bush folks swear up and down that the commissions are constitutionally permissible; they cite the case of Ex Parte Quirin, where such commissions were upheld during World War II (though note that World War II was a declared war and that Congress had authorized the military tribunals in the war declaration).

But check out this story:

The key paragraphs are these, which discuss the chatter that has been heard recently about dismissing civilian court charges against Zacharias Mussaoui and taking him to Cuba for a military trial:

"Moussaoui, who is accused of conspiring with Binalshibh in the Sept. 11 attacks, has said he wants to call Binalshibh as a witness in his trial. That prospect, coupled with the recent decision of Justice Department officials to take a more active role in the handling of his case, has led to the theory that federal officials will move to dismiss the case and put Moussaoui, who is defending himself with the aid of court-appointed lawyers, before a military tribunal.

"But government sources said the Justice Department has no interest in doing so. Because Moussaoui is in this country, he could try to fight such a move in federal court. That could open the tribunal process to a constitutional challenge, something the Bush administration wants to avoid."

These paragraphs indicate that the Bush Administration isn't so sure of the constitutionality of the military tribunals after all. You see, under Johnson v. Eisentrager, a 1950 Supreme Court case, the courts arguably have no jurisdiction to hear habeas corpus claims made by enemy aliens who are outside the territorial limits of the United States. Johnson has nothing to do with the constitutionality of military tribunals, or anything else; it simply deprives the courts of jurisdiction to hear a certain type of habeas corpus claim by a certain type of military detainee. As the Washington Post reports, the last thing the Bush Administration wants to do is administer a military tribunal to anyone present in the United States, because then the Johnson jurisdictional bar would not be present, and the courts could rule on the merits of the of the constitutionality of military tribunals. Of course, this wouldn't trouble the Bush Administration if they were really sure that the tribunals, which were never specifically authorized by Congress, despite Congress' specifically enumerated power under the Constitutional to make rules for captures on land and water, were actually constitutional. It is precisely because the tribunals are likely unconstitutional that the Bush administration has no intention of doing anything that might allow a civil court challenge to a tribunal's decision.

(I might add that the Bush Administration lied about this point when it was selling its tribunal plan to the country, claiming that the defendants had a civilian court appeal route because they could always take their claims to the US Supreme Court. They may do so, but the government is prepared to argue that the Supreme Court has no power to hear the case. Some right of appeal.)

Not exactly correct. Unless by correct you mean to say "what liberals would like to see in the world come about..."

Contrary to popular belief, here is no actual talismanic forumlation for war other than we are attacked on a national level.

Congress need not always declare it, and the world has moved beyond that kind of formulation anyhow for the foreseeable future.

As Ray Cline and Yonah Alexander have pointed out, terrorism IS state-sponsored warfare, and even if not, it is ideologically sponsored warfare, and that's damn good enough.

War happend on 911. And the Sons of Allah can and should be tried by the tribunals the courts have upheld, and to this effect and the notoriety of those civilian trials for the Sons of Allah that went through, and absurdly, lasted in some cases longer than our entire participation in WWII. To avoid a lurid Vaudeville spectacle?


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