Writing for the L.A. Times, Andrew Napolitano argues that military tribunals for suspected terrorists are unconstitutional.
Tellingly, and perhaps because we did not know at the time precisely who had planned the 9/11 attacks, Congress did not declare war. But the use of the word “war” persisted nonetheless. Even after he learned what countries had sponsored terrorism against us and our allies with governmental assistance, Bush did not seek a declaration of war against them.
[…]
The casual use of the word “war” has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.
Napolitano continues by pointing out that the Supreme Court has consistently found that only a declaration of war by the Congress allows the operation of a military tribunals against those accused of violating the laws of war.
Additionally, Napolitano points out that the Federal courts have been used quite often to try terrorist suspects, without any demonstrable bad effects.
That the target of the Cole attackers was military property manned by the Navy offers no constitutional reason for a military trial. In the 1960s, when Army draft offices and college ROTC facilities were attacked and bombed, those charged were quite properly tried in federal courts. And when Timothy McVeigh blew up a federal courthouse in Oklahoma City; and Omar Abdel Rahman attempted in 1993 to blow up the World Trade Center, which housed many federal offices; and when Zacarias Moussaoui was accused in the 9/11 attacks,all were tried in federal courts. The “American Taliban,” John Walker Lindh, and the notorious would-be shoe bomber, Richard Reid, were tried in federal courts. Even the “Ft. Dix Six,” five of whom were convicted in a plot to invade a U.S. Army post in New Jersey, were tried in federal court. And the sun still rose on the mornings after their convictions.
He concludes by pointing out the very real danger of allowing any President to have the power to detain and try anybody he feels like in a military tribunal.
Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a “war,” there would be no limit to the government’s ability to use the tools of war to achieve its ends. We have a “war” on drugs; can drug dealers be tried before military tribunals? We have a “war” on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared “war” on Fox News. Are Glenn Beck, Bill O’Reilly and I and my other colleagues in danger of losing our constitutional rights to a government hostile to our opinions?
I trust not. And my trust is based on the oath that everyone who works in the government takes to uphold the Constitution. But I am not naive. Only unflinching public fidelity to the Constitution will preserve the freedoms of us all.
Read the whole thing.
h/t Dodd Harris’ Facebook page
UPDATE (James Joyner): The courts have never truly settled the question as to whether such instruments as the Gulf of Tonkin Resolution (Vietnam) and the Authorization for Use of Military Force Against Iraq Resolution constitute a declaration of war. Massachusetts v. Laird sidestepped the issue nicely.
