Op-Ed: NYCLU Responds To President’s Counsel Gonzales on Military Tribunals

By Arthur Eisenberg

In an op-ed piece that appeared in the New York Times on November 30, the President’s Counsel, Alberto R. Gonzales, defended the President’s November 13 order authorizing a breathtakingly expansive use of military tribunals. In doing so Mr. Gonzales advanced five claims not one of which is sustainable. This then is a response to Mr. Gonzales.

Mr. Gonzales first contended that the President’s order covers only foreign enemy war criminals.” Not so. A “war criminal” or, as more accurately defined by the Supreme Court, an “unlawful combatant” is a member of a military force who, disguised as a civilian, enters enemy territory surreptitiously to commit hostile acts. Spies and saboteurs are “unlawful combatants.” But the President’s order extends well beyond “unlawful combatants.” It could apply to any noncitizen who supports a charitable or religious organization that, in turn, provides financial aid to an entity that the government regards as an organization aimed at causing injury to the United States. A noncitizen providing such support could be tried for purely innocent associational activity because the order does not require, as a condition of prosecution or conviction, that the accused knowingly supported terrorism or Anti-American conduct.

Second, Mr. Gonzales claimed that “[m]ilitary commissions are not secret.” He acknowledges that the order authorizes secret proceedings but suggests that closed hearings will be rare. But, the President’s reason for substituting military tribunals for traditionally open judicial processes is that the military tribunals can be closed and can rely upon secret evidence. Why in any particular case, would the President opt for a military tribunal if not for their secrecy?

Third, Mr. Gonzales argued that the military trials will be “full and fair.” But, under the President’s order, the military trials need not comport with even the most basic constitutional, procedural and evidentiary requirements traditionally designed to ensure fairness. The order dispenses with trial by jury; allows tribunals to disregard the usual rules of evidence; ignores the presumption of innocence; allows secret proceedings; authorizes the death penalty; and denies any judicial review of the tribunals’ decisions. The order is hardly calculated to ensure fair trials as we have come to understand that concept.

Fourth, Mr. Gonzales insisted that “[t]he order preserves judicial review in civilian courts.” In fact, the order goes out of its way to obscure the availability of such review as it suggests that such review is unavailable. In fact, judicial review is available by habeas corpus petition, not because the order provides for such review but because the President is not authorized to suspend habeas corpus and because Supreme Court precedent permits such review.

Fifth, Mr. Gonzales claimed that military tribunals “are consistent with American historical and constitutional traditions.” In fact, the historical and constitutional precedent establishes three principles: (1) The substitution of military tribunals for civilian courts outside the theatre of military operations can only be undertaken pursuant to congressional authority; (2) Such authorization would itself be unconstitutional, as applied to persons in this country, where the civil government is functioning and the courts are open; (3) The only exception to the second principle occurs when Congress authorizes and the President directs a military tribunal to try and punish “unlawful combatants.”

Accordingly, when applied to an individual who is not a member of a military force with whom we are at war– and who therefore, cannot be accused of violating the Law of War — for acts committed in this country, the use of military tribunals under the President’s order of November 13 would be plainly unconstitutional. And this is the case for two reasons. First, Congress has not authorized the use of military tribunals in this circumstance. Second, Congress could not provide such authorization where the civilian courts are open and ready for business.

Arthur Eisenberg is the Legal Director of the NYCLU.