Foreign Policy

Napolitano's Case Against Military Tribunals

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Writing at the L.A. Times, Judge Andrew Napolitano (an occasional Reason contributor) makes the case against using military tribunals for suspected 9/11 terrorists. Excerpt:

Pretty boring-looking, for a Nazi-saboteurs trial

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.

The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II. They came ashore in Amagansett, N.Y., and Ponte Vedra Beach, Fla., and donned civilian clothes, with plans to blow up strategic U.S. targets. They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.

In Ex Parte Quirin, the Supreme Court case that eventually upheld the military trial of these Germans—after they had been tried and after six of the eight defendants had been executed—the court declared that a formal declaration of war is the legal prerequisite to the government's use of the tools of war. The federal government adhered to this principle of law from World War II until Bush's understanding of the Constitution animated government policy.

The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

Whole thing here. Read Nick Gillespie's 2005 interview with Napolitano here.

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  1. Cue whining about “extending rights” to terrorists.

  2. Caring about constitutional limits on government power is so 90’s.

    1. … 1790’s!

  3. Due process applies to persons and not to Islamists, as many libertarian Hit and Run commenters will swarm to remind us.

  4. This would require anyone to give a fuck about the Constitution.

    What a quaint notion. When I tell people about strict Constitutionalism they go on and on about how “the framers couldn’t have predicted the problems and technology we have today!”

    I tell them that I can’t renege (sp?) out of the law; if I do I go to jail for not paying taxes. But the government can break the social contract whenever it wants.

    They always look at me with befuddled faces.

    1. “the framers couldn’t have predicted the problems and technology we have today!”

      Whenever someone says that to me, I always ask them to please explain which particular portions of the Constitution they feel are obsolete or passe and which, therefore, can and should be disregarded.

      That usually shuts them up, because I have found that, at least thus far, without exception people who say that have not the slightest fucking clue what the Constitution actually says. They’re just parroting back some “argument” they heard that sounds right to them.

      1. I’m the same way with the bible. Everybody must get stoned.

  5. Obama is on the record as having said they will be tried and executed. Why shouldn’t we believe him?

  6. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration.

    So he’s perfectly happy if Congress did declare war? Then this just gets back to the argument of whether a Congressional act specifically authorizing military force to be used by the President is a declaration of war even if it doesn’t contain the magic word. If it does count, then we have to admit that the courts are being more protective of rights than they were then. (And that’s a good thing, overall.)

    They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.

    No, he based his order to do so on calling it an emergency. The Supreme Court based their ruling on the fact that WWII seemed like an emergency. The Executive and the Courts have always ignored the Constitution in emergencies. All else is just details and justification.

    The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line.

    Arguably trying some of them in civilian court and some of them in military courts is worse than trying all of them in military courts, at least if there isn’t a very clear reason for why they might be tried in one or the other.

    The Nuremberg trials were a travesty of justice in a traditional sense, but it doesn’t seem to have poisoned our civil court system.

    The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II.
    In Ex Parte Quirin, the Supreme Court case that eventually upheld the military trial of these Germans — after they had been tried and after six of the eight defendants had been executed.

    This whitewashes Ex Parte Quirin. Two of the eight were US citizens who had been in Germany. They were of German descent, but not just “Germans.” Ex Parte Quirin, like Eisentrager v. Johnson, had elements of its ruling that were rejected recently.

    From the Civil War, to World War II, to now, it’s clear that the trend is greater protection of defendants in time of war, not less. Not that there’s anything wrong with that additional protection, but people are fooling themselves if they think that there was a golden age of respecting rights during war in the USA.

    1. The Nuremberg trials were a travesty of justice in a traditional sense, but it doesn’t seem to have poisoned our civil court system.

      Only a Nazi or a Nazi sympathizer would say or write such a thing.

  7. Leaving aside this particular issue, I am always queasy to see Reason feature Andrew Napolitano given his enthusiasm for the disgusting Alex Jones. Isn’t there someone you could go to on this issue who isn’t a fan of a paranoid lunatic?

    1. I’m no fan of Alex Jones either, having tussled on air with him back in the 90s when he was even more in flagrante scumbago than he is today. He’d regularly take other peoples’ research (done the good old way; hours of research in the stacks of a govt depository library or poring through eye-blurring microfiche) and then he’d go on the radio with it where he would maddeningly misunderstand and/or misrepresent it, often hysterically so–and not the funny sort of hysterics. I’d call into his show and call him on it, and he’d scream at me and accuse me of being a government agent. I classify him as a liar and charlatan.

      That said, a lot of people question things because of exposure to his histrionics, so while it’s not my preferred menu, and many of those people have to be dragged kicking and screaming to a rational conversation, I am thankful that someone like him is out there mixing it up.

  8. Isn’t there someone you could go to on this issue who isn’t a fan of a paranoid lunatic?

    Escpecially when actual lunatics like Sullivan and Greenwald offer the same points — and even more insider signaling bonus points than you get from citing a judge. That’s a damn deal.

  9. war is peace
    freedom is slavery
    ignorance is strength.

    1. As I read your words, I heard your impressive voice, Barack. You are so good for us right now, so very good for us.

      It kinda makes me hard when you speak, like you are talking right into me; your strong words confidently thrusting into my willing and pliable brain, over and over, until a feeling of pure pleasure engulfs me as your words spray like melted butter all over my mind.

      And to think people say your popularity is a cult, Ha! They just don’t get it, Barack. They just don’t get it like I do.

  10. 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.

    This argument speaks directly to me. I am completely sympathetic to our founding fathers wisdom in endowing the Congress with the sole authority to declare war.

    However, it flies in the face of the past seventy years. Not since 1941 has Congress declared war. Korea and Vietnam were most certainly wars. The military actions taken since the end of the draft haven’t had the same feeling here in the states as past wars. Yet I think it’s folly to deem what we’ve been up to in Iraq and Afghanistan something other than war. In any case, the ‘panoply of the government’s military (and domestic) powers’ that come with war have been repeatedly triggered without a Congressional declaration.

    1. I am not sure how they get around the necessity of a declaration of war. My opinion is(very losely stated, without particulars) that if a force of more than 2500 U.S. military personnel are mobilized for ANY reason on foreign soil, it should require both a declaration of war and reinstitution of the draft for men and women. The most fit and best educated go first.

      1. I am not sure how they get around the necessity of a declaration of war.

        Congress has to pass a resolution, and they did so. They called it an “Authorization of Military Force,” which is a pretty stupid mealymouthed way to avoid saying declaration of war, but everyone was perfectly aware that it amounted to declaring war.

        I think it’s completely correct that Congress should have to clearly state its intention to go to war. But a magic word doesn’t make it so, and more than Congress or the Executive Branch should be allowed to violate the Constitution in other ways by doing something de facto even without using a technical name. (Like not calling a tax a tax. Duck typing applies.)

        reinstitution of the draft for men and women. The most fit and best educated go first.

        The most fit already do go first, and the volunteer army has is more intelligent, better educated, and less poor than the population at large. The difference is particularly remarkable among those who fight– people who join the army purely out of monetary reasons are much more likely to pursue non-combat missions.

        So I’m not sure what you’re aiming at, other than trying to restore government slavery in some complicated tactic.

        1. What I am getting at is using it as a tactic to keep the U.S from getting involved in bullshit military excursions. If a politician has to piss off the whole country to play global police force, they might not be as willing to do it.

      2. “The most fit and best educated go first.”

        Very Athenian of you, but I think there will be an unprecedented epidemic of stupidity and fatness…

  11. nch : “Due process applies to persons and not to Islamists, as many libertarian Hit and Run commenters will swarm to remind us.”

    So THAT’s why Iran’s Ahmadinejad was able to avoid due process and jail/ kill desenters during the recent demonstrations and avoid the wrath of the likes of nch.

  12. Given that some Gitmo detainees other than KSM are being tried by military tribunal, is the Hon. Mz. Napolitano therefore publicly calling the actions of her boss, the President of the United States, illegal under the due process clause of the 5th Amendment? If so, wouldn’t the honorable thing to do be to resign her post?

    1. Forehead-slap moment. Wrong Napolitano.

    2. You can type words, so I can know you can read.

      Therefore, the logical conclusion is not that you are strictly illiterate but that you are strictly moron.

  13. Are the various AUMFs declarations of war? Some scholars think they are.

    1. If I remember right, the Supreme Court said they were.

      Also, and I am again going from memory, using the word War in a declaration of war triggers several statutes put in after WWII. Basically these statutes give the government WWII levels of control over everything including the economy.

      In other words, there is a reason they avoid the word.

  14. What’s really sad is that Holder can’t defend his decision nearly as well as Napolitano can.

    I agree with Thacker. It goes back to whether you consider the 9/11 attacks to be an act of war. If Bush had pushed for Congress to actually declare war, then imprisonment at Gitmo and military tribunals might be such a big issue now…

    On the other hand, he may have been betting that if there’s no official war, then Geneva doesn’t apply and the US would have more freedom in extracting information…

    1. On the other hand, he may have been betting that if there’s no official war, then Geneva doesn’t apply and the US would have more freedom in extracting information…

      The Administration never argued that Geneva didn’t apply. It just argued that people who don’t follow the laws of war set under the Conventions (wearing uniforms, avoiding intentionally targeting civilians, etc.) don’t have rights under that Convention, and that that’s an intentional safeguard– someone follows the Conventions in order to get its protection. That argument, agree or disagree, wouldn’t change with a declaration of war that was worded that way.

      1. I can see that.

        It still baffles me that Holder can sit in front of Congress and twiddle his thumbs and offer no support for his decision. Hell, the arguments offered on the comment thread here are better than nothing.

  15. Napolitano’s argument is that absent a declaration of war, they need to be tried in federal court. Here’s the problem with going down that road. I don’t see any wording in the Constitution that says rights apply “only in time of peace”. Either enemy combatants/POWs/captured terrorists are entitled to the provision of the Constitution or they are not. A long standing precedent of treating them differently during wartime doesn’t mean much, constitutionally speaking.

    On a practical note, I don’t see why the pre-Bush admin rules for military tribunals aren’t suitable. We are more or less treating them as de facto POWs.

  16. Part of the problem with “declaration of war” v. “AUMF” is that wars are traditionally armed conflicts between sovereigns. Military action against insurgencies, terrorists, AQ cells, Taliban in the hills, etc. is not a conflict with a sovereign, and so is not a “war”.

    A declaration of war would have been the declaration of armed hostilities with a nation-state. We could have (should have?) had one with Iraq and perhaps Afghanistan, but once the wars with the governments of those nations were over, I’m not sure how the occupation/anti-insurgency would be dealt with by Congress. Perhaps with an authorization for the use of military force?

    Is the argument that US troops can only be used in formal, Geneva Convention-style conflicts with sovereigns, and once the sovereign capitulates must come home post-haste? As a matter of Constitutional law?

    1. This is a great reason to simply not fight insurgencies. If the Iraq/Afghanistan wars had been fought correctly to begin with, there would be no insurgency (a la Japan, where not a single soldier died in hostile action post war.) If an insurgency had begun to develop, we should revert to full scale war.

      1. *should have reverted to*

      2. War against whom? The Afghan people? The Iraqi people? We should never have put American boots in either of those countries.

        1. The Afghan people and the Iraqi people supported the regimes that were there before the war, and support the insurgents today, so yes. There are exceptions, but they are very few.
          Pretending that these insurgencies are a totally separate entity that is able to hide among the population is a delusion.
          Once you commit soldiers (as Bush and Obama have done), you have to give them your full support and let them do their job (destroy the enemy). To hamstring them with peacekeeping and nation building missions puts them in an impossible situation, and does not serve US interests.

          I agree that Iraq and Afghanistan were poor choices to begin with, (Iran, Saudi arabia were and still are far greater threats).

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