Letter to the Editor: NYCLU Responds To Wall Street Journal Editorial On Military Tribunals

To the Editor:

Your editorial of December 7 (“Leahy’s Rout”) concluded that “the Bush-Ashcroft measures [including the authorization of military tribunals to prosecute non-citizens living in this country for acts injurious to the U.S.] are well within America’s Constitutional tradition during time of war.” I wonder how you reconcile this conclusion with the Supreme Court decisions in the Milligan and Quirin cases, the two leading decisions addressing the use of military tribunals outside the theatre of military operations.

In Milligan, which arose out of the use of a military tribunal to prosecute a Southern sympathizer during the Civil War, the Court held, first, that outside the theatre of military operations, the substitution of military tribunals for civilian courts is constitutionally permissible only if authorized by Congress and, second, that even if authorized by Congress, military tribunals are impermissible when the civilian courts are open and functioning. Quirin upheld the use of military tribunals during World War II to prosecute eight members of the German military who covertly entered this country, changed out of uniform into civilian clothes in order to commit acts of sabotage and who, in doing so, violated the Law of War. Without overruling Milligan, the Quirin decision created a narrow exception to the Milligan holding in allowing the use of military courts to try enemy military personnel for violations of the Law of War.

President Bush’s order extends well beyond the narrow exception created by Quirin. It would allow for military trials of civilians who are arrested in this country and accused not of violating the Law of War but of a range of conduct injurious to the U.S. In this respect, the order is plainly unconstitutional.

Arthur Eisenberg is the Legal Director of the NYCLU.