WASHINGTON -- President Bush's decision to try civilians before secret military tribunals could lead to the kind of showdown between the Army and the judiciary not seen since the Civil War.
Bush quietly signed an executive order this week that says any suspected terrorist "who is not a United States citizen" can be arrested, tried, convicted and sentenced by the U.S. military.
The two-page order, drawing on the president's authority as commander-in-chief during wartime, says a secret military tribunal may impose sentences as harsh as death on illegal visitors to the United States, green-card holders or tourists who are accused of terrorism.
By filing a so-called writ of habeas corpus, attorneys representing someone facing a tribunal could petition the civilian courts to take up the case, a move that could lead to a rare tussle between civilian and military authorities.
A safeguard of liberty dating back to English common law and England's Habeas Corpus Act of 1671, the writ of habeas corpus says that authorities must bring a person they arrest before a judge who orders it. The U.S. Constitution says: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
During the Civil War, President Lincoln suspended habeas corpus -- a decision that led to a showdown between the military and U.S. Chief Justice Roger Taney. After the U.S. Army arrested John Merryman on charges of destroying railroad bridges and imprisoned him in Fort McHenry, Merryman's lawyer drew up a habeas corpus petition that Taney quickly signed.
When the Army refused to bring Merryman before the high court, Taney said the U.S. marshals had the authority to haul Army General George Cadwalader into the courtroom on charges of contempt -- but Taney wouldn't order it since the marshals would likely be outgunned by the regular army. Instead, Taney protested and called on Lincoln "to perform his constitutional duty to enforce the laws" and the "process of this court."
That's not likely to happen again, says Eugene Fidell, president of the National Institute of Military Justice.
"The likelihood that the marshal of the federal court would be literally stiffed by a military commander, in this day and age, is slim to zero," Fidell says.
But, says Fidell, it's not clear what the present-day Supreme Court would do if confronted with the same request. "I think they would entertain it, and they would have to make a decision about whether that individual was an enemy belligerent," Fidell says.
During World War II, the Supreme Court bowed to military authorities and refused to grant a writ of habeas corpus.
In June 1942, FBI agents nabbed a squad of disguised German saboteurs who landed at Ponte Vedra, Florida, with explosives and fuses and plans to interfere with the American war effort. President Roosevelt immediately appointed a military tribunal and ordered it to try the case.
Roosevelt's order said that people sneaking into the United States who had ties to the Axis powers "and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals."
Arguing that President Roosevelt did not have the legal authority to order that the saboteurs be tried by a military tribunal, defense attorneys said that any proceedings must take place before a civilian court.
Even accused German spies, they argued, must have "a speedy and public trial, by an impartial jury," in the words of the Sixth Amendment to the U.S. Constitution. Defense counsel also argued that under the Fifth Amendment, an indictment from a grand jury was necessary.
In a case called Ex Parte Quirin, the Supreme Court's justices denied the request. They reasoned that long-standing American law, dating back to the Revolutionary War, recognized two classes of belligerents: uniformed enemy soldiers who followed the traditional "lawful" rules of war and should be held as prisoners of war, and enemy spies or saboteurs skulking about in disguise.
Examples included, the court suggested, British army major John Andre, convicted and hung in 1780 by a tribunal for spying behind enemy lines, and a Civil War order saying that enemy troops not wearing their uniforms, "if found within or lurking about the lines of the captor, are treated as spies, and suffer death."
The court ruled: "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."
But even during the height of World War II, not that long after Pearl Harbor, the justices still acknowledged that there are some "offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury."
David Cole, a professor of constitutional law at Georgetown University, says Bush's executive order is unprecedented for two reasons: Tribunals will be used when America has not declared war, and they are not limited to terrorists who are members of al-Qaida.
Bush could have written his order to apply only to al-Qaida members, but instead chose to include non-citizens who have harbored terrorists, are terrorists or have "conspired" with terrorists.
During the Ex Parte Quirin case in 1942, the Supreme Court cited the "Articles of War" 18 times, reasoning that Congress granted the president extraordinary powers by formally declaring war.
But after the deadly terrorist attacks on Sept. 11, Congress didn't go quite that far. Instead of declaring war, Congress enacted a one-paragraph resolution that authorized "all necessary and appropriate force" when responding to the hijacked airplanes that slammed into the World Trade Center and the Pentagon.
"To adopt this military tribunal is essentially to throw out the window all of the protections we have for 200 years considered critical to a fair determination of guilt," says Georgetown's Cole. "It throws out the requirement that the trial be public, that the evidence that the government relies on be revealed to the defendant, that there be any judicial review. It throws out the requirement that the government provide exculpatory evidence."
Cole says that "these are the bottom-line constitutional principles that we have concluded are necessary to give a criminal judgment legitimacy."
The American Civil Liberties Union says: "To our knowledge, the move to establish a military tribunal when Congress has not declared war is unprecedented. We do not believe that the administration has shown that the constitutional jury trial system does not allow for the prosecution of those accused of terrorist activities."
During speeches this week, Bush administration officials defended the secret military tribunals.
"Somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans -- men, women and children -- is not a lawful combatant," Vice President Dick Cheney said after a speech Wednesday. "They don't deserve to be treated as a prisoner of war. They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process."
Attorney General John Ashcroft said at a press conference, "It's important to understand that we are at war now."
The Bush administration, which hopes tribunals will let them keep intelligence information secret and avoid a potential public trial of Osama bin Laden, may soon begin to turn over some of the thousands of people held on charges related to the Sept. 11 attacks to military custody.
One possible area of conflict between Bush's executive order, which applies to resident aliens accused of terrorism, is a set of court precedents that say such people should enjoy the full protection of the Bill of Rights -- including a trial by jury.
In the 1896 case of Wong Wing v. U.S., the Supreme Court said that Chinese immigrants deserved a fair trial before they could be imprisoned.
Half a century later, in Johnson v. Eisentrager, the Supreme Court ruled on whether to grant a writ of habeas corpus to former German soldiers who spied on the United States after Germany's surrender but before Japan's.
Said the justices: "We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States."
One reason the justices said they chose such an approach, which the current Supreme Court may echo, is that "the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States."
