Waging War, Deciding Guilt: Trying the Military Tribunals

Yale Law Journal

Volumn 111, Issue 6, 2002, Pages 1259-1310

  Katyal, Neal K ^a,b   Tribe, Laurence H ^c  

^a YALE UNIVERSITY   (United States)

^b GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^c HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0242503288     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797612     Document Type: Review

References (199)

1. Ours is "a government of laws and not of men." MASS. CONST. of 1780, pt. I, art. XXX; see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The government of the United States has been emphatically termed a government of laws, and not of men.").
2. See Bruce Ackerman, Don't Panic, LONDON REV. BOOKS, Feb. 7, 2002, at 15 (describing many of these examples); William Safire, Editorial, Colin Powell Dissents, N.Y. TIMES, Jan. 28, 2002, at A15 (describing State Department opposition to the decision on detainee status); Katharine Q. Seelye, Detainees Are Not P.O.W.'s Cheney and Rumsfeld Declare, N.Y. TIMES, Jan. 28, 2002, at A6 (describing how the Bush Administration has decided to treat those detained at Guantanamo Bay, Cuba, as unlawful combatants).
3. See Bruce Ackerman, Don't Panic, LONDON REV. BOOKS, Feb. 7, 2002, at 15 (describing many of these examples); William Safire, Editorial, Colin Powell Dissents, N.Y. TIMES, Jan. 28, 2002, at A15 (describing State Department opposition to the decision on detainee status); Katharine Q. Seelye, Detainees Are Not P.O.W.'s Cheney and Rumsfeld Declare, N.Y. TIMES, Jan. 28, 2002, at A6 (describing how the Bush Administration has decided to treat those detained at Guantanamo Bay, Cuba, as unlawful combatants).
4. See Bruce Ackerman, Don't Panic, LONDON REV. BOOKS, Feb. 7, 2002, at 15 (describing many of these examples); William Safire, Editorial, Colin Powell Dissents, N.Y. TIMES, Jan. 28, 2002, at A15 (describing State Department opposition to the decision on detainee status); Katharine Q. Seelye, Detainees Are Not P.O.W.'s Cheney and Rumsfeld Declare, N.Y. TIMES, Jan. 28, 2002, at A6 (describing how the Bush Administration has decided to treat those detained at Guantanamo Bay, Cuba, as unlawful combatants).
5. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism §§ 3(a), 4(b), 66 Fed. Reg. 57,833 (Nov. 13, 2001) [hereinafter Military Order].
6. The Order covers anyone who there is reason to believe (i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described [in the first two categories above]. Id. § 2(a)(1) (emphasis added).
7. Id. As the White House Counsel wrote, "Under the order, the president will refer to military commissions . . . noncitizens who are members or active supporters of Al Qaeda or other international terrorist organizations targeting the United States." Alberto R. Gonzales, Editorial, Martial Justice, Full and Fair, N.Y. TIMES, Nov. 30, 2001, at A27.
8. Military Order, supra note 3, § 4(c)(1); see also id. §§ 3(a), 7(d).
9. Whenever and wherever the Constitution is applicable, it generally requires: (1) a trial by jury; (2) that the jury trial be a speedy and public one; (3) the right to confront witnesses and subpoena defense witnesses; (4) proof beyond a "reasonable doubt" for criminal convictions in general, and detailed procedural protections to ensure accuracy before the death penalty is imposed; and (5) indictment by a grand jury. See U.S. CONST, art. III, § 2 (providing the right to a jury trial); id. amend. VI (providing the "right to a speedy and public trial, by an impartial jury"); id. (requiring that an accused have the right "to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor"); In re Winship, 397 U.S. 358, 364 (1970) (requiring the "beyond a reasonable doubt" standard in state criminal trials); Lockett v. Ohio, 438 U.S. 586 (1978) (requiring individualized consideration of mitigating factors in sentencing individuals to death); U.S. CONST. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. . . ."); see also Duncan v. Kahanamoku, 327 U.S. 304, 307 (1946) (observing that "military tribunals . . . fail to afford" "established procedural safeguards" that "are prized privileges of our system").
10. The Order states that, "at a minimum," the Secretary of Defense is to issue regulations that "provide for . . . a full and fair trial, with the military commission sitting as the triers of both fact and law," with admissibility of all evidence that has "probative value to a reasonable person," and with conviction and sentencing "only upon the concurrence of two-thirds of the members of the commission present." Military Order, supra note 3, § 4(c)(2)-(3), (6)-(7). We understand the words "at a minimum" to suggest that the Secretary may provide for procedural protections that go beyond those specified in the Military Order.
11. Id. § 4(c)(4).
12. See id. § 4(c)(6)-(7). The regulations being contemplated as of this writing would apparently require a unanimous verdict in order to sentence someone to death. See Neil A. Lewis, Rules on Tribunal Require Unanimity on Death Penalty, N.Y. TIMES, Dec. 28, 2001, at A1.
13. Those cases holding that no appeal need be provided as a matter of right, such as McKane v. Durston, 153 U.S. 684, 687 (1894), do not override the basic right to have someone other than one's accuser assess one's guilt. Cf. Dr. Bonham's Case, 77 Eng. Rep. 646, 652 (K.B. 1610) (stating that a person cannot be a judge in his own cause). An "appeal" to the chief prosecutor himself cannot satisfy due process where the judgment appealed from was rendered by a body "whose personnel are in the executive chain of command." Reid v. Covert, 354 U.S. 1, 36(1957). Just as the Court has found some appeal to a neutral judge essential as a matter of due process even in certain cases involving only monetary penalties and no criminal punishment at all, see Honda Motor Co. v. Oberg, 512 U.S. 415, 430-32 (1994), such an appeal is required by due process here given that the tribunals are determining guilt in the first instance. And it is, of course, settled that to the degree an appeal is provided, due process demands that it be an appeal to a disinterested body. See. e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821-25 (1986).
14. The Order states: (1) [Military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and (2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal. Military Order, supra note 3, § 7(b). The Order also provides for submission of the trial record and any conviction "for review and final decision" by the President or Secretary of Defense. Id. § 4(c)(8). The White House Counsel has nonetheless stated that the "[o]rder preserves judicial review in civilian courts. Under the order, anyone arrested, detained or tried in the United States by a military commission will be able to challenge the lawfulness of the commission's jurisdiction through a habeas corpus proceeding in a federal court." Gonzales, supra note 5 (emphasis added). When similar language was used during World War II, the Court construed it to permit certain habeas corpus actions. See infra text accompanying note 85.
15. It is, for example, difficult to know, under the Order's loose definition of covered activities, exactly what sort of act "threaten[s]" an "injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy." Military Order, supra note 3, § 2(a)(1)(ii). Almost any offense involving money - from counterfeiting currency, to holding up a bank at gunpoint, to threatening to blow up the bank - could come under this description.
16. Id.
17. Compare id. § 2(a)(1)(iii) (covering those who "knowingly harbored one or more individuals" described in other sections of the Order), with id. § 2(a)(1)(ii) (covering all those who have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor").
18. Gonzales, supra note 5. Mr. Gonzales has also stated that each military tribunal's proceedings would be conducted in the open, with exceptions only for "the urgent needs of national security." Id. It is, to be sure, nice to have the White House Counsel's personal guarantee that this is so, but "trust me" has never been enough for the American people when their rights have been at stake. See supra note 1 and accompanying text.
19. Ex parte Quirin, 317 U.S. 1, 35 (1942). The difference between lawful and unlawful combatants is codified in several international conventions. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, adopted June 8, 1977, arts. 43-44, 1125 U.N.T.S. 3, 23-24 [hereinafter Protocol I to the Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War, adopted Aug. 12, 1949, arts. 4-5, 6 U.S.T. 3317, 3320-22, 75 U.N.T.S. 134, 138-42; Fourth Hague Convention Respecting the Laws and Customs of War on Land, done Oct. 18, 1907, Annex, art. 1, 36 Stat. 2277, 2295-96. Like many legal rules, the distinction is not always clear. For example, Justice Black, joined by Justices Douglas and Burton, disagreed with the majority over what constituted unlawful belligerency in the Eisentrager case. Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J., dissenting) ("Whether obedience to commands of their Japanese superiors would in itself constitute 'unlawful' belligerency in violation of the laws of war is not so simple a question as the Court assumes.").
20. Fourth Hague Convention Respecting the Laws and Customs of War on Land, supra note 17, Annex, art. 1, 36 Stat. at 2296.
21. Geneva Convention Relative to the Treatment of Prisoners of War, supra note 17, art. 4(a), 6 U.S.T. at 3322, 75 U.N.T.S. at 138-40 (stating that such individuals qualify for protection "provided they carry arms openly and respect the laws and customs of war").
22. Id. art. 5, 6 U.S.T. at 3324, 75 U.N.T.S. at 140-42 (emphasis added); see also supra note 2 and accompanying text (discussing the Bush Administration's unwillingness to provide individualized determinations of the status of those detained at Guantanamo Bay).
23. The Geneva Convention also affords rights to unlawful belligerents that the Military Order appears not to guarantee. Article 75 of Protocol I to the Geneva Convention declares, for instance, that anyone charged has the "right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him," is "presumed innocent until proven guilty according to law," cannot "be compelled to testify against himself or to confess guilt," and "shall have the right to have the judgment pronounced publicly." Protocol I to the Geneva Convention, supra note 17, art. 75, 1125 U.N.T.S. at 37-38. These rights apply to every combatant, even mercenaries. DOCUMENTS ON THE LAWS OF WAR 421 (Adam Roberts & Richard Guelff eds., 3d ed. 2000) (stating that unlawful combatants such as mercenaries "remain under the protection of the fundamental guarantees, applicable to all persons, as set forth in Article 75"); L.C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 191, 226 (1993) (stating the same rule). Yet these Article 75 guarantees, particularly those requiring production of witnesses and public judgments, appear to be cut back in the Order.
24. One other aspect of the Military Order does not appear to be under consideration for administrative modification. The Military Order permits the indefinite detention of any alien the President suspects to be a member of al Qaeda, anyone he suspects of terrorism, or anyone who aids or abets such individuals. This detention power is in no way contingent on proving that the laws of war have been violated, and there is actually no requirement of an eventual trial or tribunal in the Order. See Military Order, supra note 3, § 2(b) ("[T]he Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4." (emphasis added)); id. § 3 (providing conditions for detention); id. § 4 ("Any individual subject to this order shall, when tried, be tried by military commission . . . ." (emphasis added)).
25. Such unbounded power flies in the face of decisions such as City of Chicago v. Morales, 527 U.S. 41 (1999), which held that the City of Chicago's response to street gangs - enacting legislation that allowed the police to arrest and prosecute anyone who, loitering near a known gang member, did not disperse upon police command - was facially unconstitutional in essentially delegating to those who enforce the law the vaguely bounded power to make it on the spot. Justice Thomas characterized the gangs as quasi-terrorists, describing them as "fill[ing] the daily lives of many of our poorest and most vulnerable citizens with . . . terror." Id. at 99 (Thomas, J., dissenting). The Court struck down the Chicago ordinance on its face - without waiting until particular individuals were convicted or even charged. The judicial response to the Military Order, despite Bush Administration efforts to describe it as more like a mere press release than a real order, see Gonzales, supra note 5, could be harsher still. For at least the Chicago threat carried with it the guarantee that nobody would be arrested without first receiving a clear and individualized warning - and that anyone could avoid arrest and prosecution simply by heeding that warning and dispersing when ordered to do so. The Military Order carries no such corresponding assurance.
26. The Order confuses the role of legislator, policeman, prosecutor, judge, and court of appeal, concentrating all of these powers in the executive branch. For the role of the legislator, see Military Order, supra note 3, §§ 4(b), 6(a), which gives the power to promulgate "orders and regulations" necessary for commissions to the Secretary of Defense; id. § 2(a), which states that the President shall "determine from time to time in writing" who is a terrorist subject to the commissions; and id. § 4(c)(5), which provides that the Secretary of Defense should "designate[]" persons to "conduct. . . prosecution." For the role of the policeman, see id. § 3(a), which provides the power to "detain[] at an appropriate location." For the role of the prosecutor, see id. § 4(a), which provides trial "for any and all offenses triable by military commission" and punishment including life imprisonment or death. For the role of the judge, see id. § 4(c)(2). For the role of the court of appeal, see id. § 4(c)(8), which provides for "review and final decision by [the President] or by the Secretary of Defense if so designated by [the President] for that purpose." In fact, the President himself is empowered to take on both the role of prosecutor, in determining who is to be subject to the tribunal under section 2(a), and of ultimate court of appeal under section 4(c)(8).
27. Reid v. Covert, 354 U.S. 1, 11 (1957).
28. U.S. CONST. amend. V (emphasis added). Hereinafter, "liberty" will be a synecdoche for the three categories of life, liberty, and property.
29. It is imperative that Congress not retroactively criminalize conduct that "was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed." Collins v. Youngblood, 497 U.S. 37, 52 (1990). Provided a congressional act has none of these effects, and does not increase the defendant's evidentiary burden, Carmell v. Texas, 529 U.S. 513, 531 (2000), its action will not violate the Ex Post Facto Clause. See also Thompson v. Missouri, 171 U.S. 380 (1898) (finding no violation where a statute permitted the introduction of expert handwriting testimony as competent evidence, despite the fact that the rule in place at the time of the offense did not permit such evidence to be introduced). However, "[application of a new jurisdictional rule usually 'takes away no substantive right but simply changes the tribunal that is to hear the case.'" Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994) (citation omitted).
30. Cf. WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 219 (1998) (stating that a congressional directive gives the President power to do things he cannot otherwise do, but noting that "Congress may not always grant the President all of the authority for which he asks").
31. U.S. CONST. art. II, § 3.
32. Id. art. II, §§ 2-3.
33. The Constitution does not make explicit the President's power to remove at will purely executive officers whose subjection to the President's political will is inherent in their role, but such a power is quite a plausible inference from the Constitution's structure of separated powers. Myers v. United States, 272 U.S. 52, 117 (1926).
34. U.S. CONST. art. I, § 8, cl. 9.
35. Id. art. I, § 8, cl. 11.
36. Id. art. II, § 2, cl. 1.
37. Id. art. I, § 8, cl. 10.
38. Id. art. I, § 8, cl. 4.
39. Id. art. I, § 8, cl. 14.
40. Id. art. I, § 8, cl. 9.
41. Id. art. I, § 7.
42. Compare id. art. II, § 1, cl. 1 ("The executive Power shall be vested in a President of the United States of America."), with id. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress . . . ."). See also Myers v. United States, 272 U.S. 52, 118 (1926) ("The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed . . . ."). Neither the text of the Vesting Clauses nor the cast given to them in Myers goes so far as to authorize presidential action in circumstances that entrench on Congress's Article I, Section 8 powers.
43. U.S. CONST, art. I, § 7, cls. 1-2. See generally Neal Kumar Katyal, Legislative Constitutional Interpretation, 50 DUKE L.J. 1335, 1368-69 (2001) (discussing the Constitution's rights-protecting asymmetry"). The President has the power to veto a law he thinks unconstitutional. U.S. CONST. art. I, § 7, cl. 2.
44. U.S. CONST. art. II, § 3; id. art. II, § 2, cl. 1.
45. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
46. THE DECLARATION OF INDEPENDENCE para. 14 (U.S. 1776); see also Laird v. Tatum, 408 U.S. 1, 19 (1972) (Douglas, J., dissenting) (finding that this clause restricts the power of the military); Reid v. Covert, 354 U.S. 1, 29 (1957) (discussing this clause).
47. THE DECLARATION OF INDEPENDENCE para. 20 (U.S. 1776).
48. Id. para. 11.
49. E.g., The Department of Justice and Terrorism: Hearing Before the S. Judiciary Comm., 107th Cong. (2001) (LEXIS, Nexis Library, Federal News Service File) [hereinafter Terrorism Hearings] (statement of John Ashcroft, Attorney General) (emphasizing that "the President's authority to establish war crimes commissions arises out of his power as commander-in-chief"); id. ("I believe, that's clearly the power of the president and his power to undertake that unilaterally. The Supreme Court did address in the Quirin case, 60 years ago, the issue of war crimes commissions. And in that case, it cited the authority of the congressional declaration of war as language recognizing the president's power to create war crimes commissions. But I don't believe that the court indicates or predicates its assumption and accordance of the president that power upon that particular authority."); Preserving Freedoms While Defending Against Terrorism: Hearing Before the S. Judiciary Comm., 107th Cong. (2001) (LEXIS, Nexis Library, Federal News Service File) (statement of Sen. Orrin Hatch) ("Because the president's power to establish military commissions arises out of his constitutional authority as commander-in-chief, an act of Congress is unnecessary.").
50. E.g., The Department of Justice and Terrorism: Hearing Before the S. Judiciary Comm., 107th Cong. (2001) (LEXIS, Nexis Library, Federal News Service File) [hereinafter Terrorism Hearings] (statement of John Ashcroft, Attorney General) (emphasizing that "the President's authority to establish war crimes commissions arises out of his power as commander-in-chief"); id. ("I believe, that's clearly the power of the president and his power to undertake that unilaterally. The Supreme Court did address in the Quirin case, 60 years ago, the issue of war crimes commissions. And in that case, it cited the authority of the congressional declaration of war as language recognizing the president's power to create war crimes commissions. But I don't believe that the court indicates or predicates its assumption and accordance of the president that power upon that particular authority."); Preserving Freedoms While Defending Against Terrorism: Hearing Before the S. Judiciary Comm., 107th Cong. (2001) (LEXIS, Nexis Library, Federal News Service File) (statement of Sen. Orrin Hatch) ("Because the president's power to establish military commissions arises out of his constitutional authority as commander-in-chief, an act of Congress is unnecessary.").
51. See infra text accompanying notes 70-78. Offenses against the law of nations, Justice Story wrote, "cannot with any accuracy be said to be completely ascertained and defined, in any public code recognized by the common consent of nations," so that "there is a peculiar fitness in giving to Congress the power to define, as well as to punish." JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1163, at 89 (Melville Bigelow ed., William S. Hein & Co. 5th ed. 1994) (1833). Case law recognizes a similar point for criminal law and military law. See United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) ("The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence."); Burns v. Wilson, 346 U.S. 137, 140 (1953) ("Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted no supervisory power over the courts which enforce it . . . . The Framers expressly entrusted that task to Congress." (citation omitted)). Indeed, without congressional guidance, military tribunals can obviously stray far beyond the circumstances of whatever emergency might have initially justified them, sweeping up many unrelated investigations. "Mission creep" can infect not only military operations that employ force, but also those that involve prosecutors and judges.
52. THE FEDERALIST No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); see also Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring) (stating that the Clause is limited to "the command of the forces and the conduct of [military] campaigns"); JOHN HART ELY, WAR AND RESPONSIBILITY 53 (1993) (outlining the limited function of the Clause); William W. Van Alstyne, Letting Slip the Dogs of War, WASH. POST, Dec. 23, 1990, at C7 (stating that the President's power is only "to pursue such war as Congress shall expressly authorize").
53. THE FEDERALIST No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); see also Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring) (stating that the Clause is limited to "the command of the forces and the conduct of [military] campaigns"); JOHN HART ELY, WAR AND RESPONSIBILITY 53 (1993) (outlining the limited function of the Clause); William W. Van Alstyne, Letting Slip the Dogs of War, WASH. POST, Dec. 23, 1990, at C7 (stating that the President's power is only "to pursue such war as Congress shall expressly authorize").
54. THE FEDERALIST No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); see also Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring) (stating that the Clause is limited to "the command of the forces and the conduct of [military] campaigns"); JOHN HART ELY, WAR AND RESPONSIBILITY 53 (1993) (outlining the limited function of the Clause); William W. Van Alstyne, Letting Slip the Dogs of War, WASH. POST, Dec. 23, 1990, at C7 (stating that the President's power is only "to pursue such war as Congress shall expressly authorize").
55. THE FEDERALIST No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); see also Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring) (stating that the Clause is limited to "the command of the forces and the conduct of [military] campaigns"); JOHN HART ELY, WAR AND RESPONSIBILITY 53 (1993) (outlining the limited function of the Clause); William W. Van Alstyne, Letting Slip the Dogs of War, WASH. POST, Dec. 23, 1990, at C7 (stating that the President's power is only "to pursue such war as Congress shall expressly authorize").
56. As we explain in Section II.B, this analysis is confined by two functional exceptions: (1) circumstances in which enemy territory has been conquered, and the military is needed to provide law and order in that theatre, and (2) situations where the adjudication of guilt of those captured is immediately necessary, and Congress cannot act expeditiously enough given the exigency.
57. Bas v. Tingy, 4 U.S. (7 Dall.) 37, 43 (1800) (emphasis added). Justice Story's Commentaries suggested a similar theme three decades later, claiming that war "never fails to impose upon the people the most burdensome taxes, and personal sufferings . . . . It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow wherever a successful commander will lead." STORY, supra note 48, § 1171, at 92. He concludes that it "should therefore be difficult in a republic to declare war." Id.; see also J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 33 (1991) (stating that only a "declaration of war fulfills Congress's representative function because it is more immediately visible to the electorate, less susceptible to ambiguity and disagreement once it is made, and thus more conducive to effective monitoring of the performance of political actors").
58. Bas v. Tingy, 4 U.S. (7 Dall.) 37, 43 (1800) (emphasis added). Justice Story's Commentaries suggested a similar theme three decades later, claiming that war "never fails to impose upon the people the most burdensome taxes, and personal sufferings . . . . It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow wherever a successful commander will lead." STORY, supra note 48, § 1171, at 92. He concludes that it "should therefore be difficult in a republic to declare war." Id.; see also J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 33 (1991) (stating that only a "declaration of war fulfills Congress's representative function because it is more immediately visible to the electorate, less susceptible to ambiguity and disagreement once it is made, and thus more conducive to effective monitoring of the performance of political actors").
59. REHNQUIST, supra note 28, at 218-19; see also U.S. CONST. amend. III (permitting the government to quarter troops in private homes without the consent of owners "in time of war," but even then confined to circumstances "prescribed by law"); 50 U.S.C. § 1829 (1994) ("[T]he President, through the Attorney General, may authorize physical searches without a court order . . . to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress."); Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000) (Randolph, J., concurring) (stating that a "congressional declaration of war carries with it profound consequences" and describing how a "declaration of war may also have the effect of decreasing commercial choices and curtailing civil liberties"); Introduction and Summary to Opinions of the Office of Legal Counsel Relating to the Iranian Hostage Crisis, 4A Op. Off. Legal Counsel 71, 91-92 (1984) (stating, in an opinion written by then-Assistant Attorney General Theodore Olson, that certain statutes trigger power "only in the event of a declared war"). We do not necessarily endorse all the activities that have been taken and upheld during declared wars, but simply observe that a declaration of war confers additional, though not unbounded, powers to the government. Cf. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) ("[I]f the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well.").
60. Act of July 6, 1798, ch. 66, § 1, 1 Stat. 577, 577. The current version of the Act is found at 50 U.S.C. § 21, and in both the original form and the present version it is also triggered by a threatened or actual "invasion or predatory incursion . . . by any foreign nation or government." Id.; see also United States ex rel. Jaegeler v. Carusi, 342 U.S. 347, 348 (1952) ("The statutory power of the Attorney General to remove petitioner as an enemy alien ended when Congress terminated the war with Germany. Thus petitioner is no longer removable under the Alien Enemy Act."); Johnson v. Eisentrager, 339 U.S. 763, 775 (1950) (describing how the Alien Enemy Act is triggered only by a declaration of war and opining that, when such a state of war exists, "courts will not inquire into any other issue as to [an alien enemy's] internment"); Ludecke v. Watkins, 335 U.S. 160, 166 n.11 (1948) (rejecting the view that the legislative history of the Alien Enemy Act shows that "declared war" meant "state of actual hostilities"); J. Gregory Sidak, War, Liberty, and Enemy Aliens, 67 N.Y.U. L. REV. 1402, 1402 (1992) (describing the Alien Enemy Act and stating that "a formal declaration of war" is "valuable" because it "forces Congress to acknowledge publicly, and to accept, that one cost of waging war is that individual liberty in the United States might have to suffer").
61. EDWARD S. CORWIN, TOTAL WAR AND THE CONSTITUTION (1947). Corwin described total war as "the politically ordered participation in the war effort of all personal and social forces, the scientific, the mechanical, the commercial, the economic, the moral, the literary and artistic, and the psychological." Id. at 4.
62. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963). Chief Justice Marshall surely had it right in the most important structural analysis of our Constitution to be found in the pages of the United States Reports, McCulloch v. Maryland: The Constitution is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." 17 U.S. (4 Wheat.) 316, 415 (1819).
63. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 6 COMPLETE WORKS OF ABRAHAM LINCOLN 297, 309 (John G. Nicolay & John Hay eds., n.p., Lincoln Mem'l Univ. 1894).
64. See infra note 186 and accompanying text.
65. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
66. Id. at 587 (Black, J.). For Justice Douglas, President Truman's decision not to seek congressional approval in advance violated the Constitution because the seizure triggered the Just Compensation Clause of the Fifth Amendment. Id. at 631 (Douglas, J., concurring). The seizure, Justice Douglas argued, presented Congress with a fait accompli - a circumstance where it was bound to raise revenues that it might have chosen not to raise - in order to satisfy just compensation obligations that it might have chosen ex ante not to incur. Id. at 631-32. Even though legislative action might "often be cumbersome, time-consuming, and apparently inefficient," Justice Douglas wrote, such action was the process our Constitution envisioned. Id. at 629; see also LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 36-37 (1985) (describing Douglas's views on legislative silence). While the various concurrences in the case make it difficult to draw a coherent rule, many, perhaps a majority, of the Justices believed that the President can act when Congress is silent in a particularly grave emergency. See Youngstown Sheet & Tube Co., 343 U.S. at 637 (Jackson, J., concurring); id. at 662 (Clark, J., concurring); id. at 683-84 (Vinson, C.J., dissenting). We believe that, in cases where individual rights are put at risk by executive action, Congress's silence should not be construed as a green light for the executive absent extremely rare circumstances. See TRIBE, supra, at 39-40 (outlining the view that "there must be a heavy burden on anyone seeking to find a yes in Congress' silence" and that due process principles would generally require affirmative congressional action); Neal Kumar Katyal, Judges as Advicegivers, 50 STAN. L. REV. 1709, 1716, 1757-67 (1998) (describing the virtues of clear-statement rules when government action is close to the constitutional line).
67. Id. at 587 (Black, J.). For Justice Douglas, President Truman's decision not to seek congressional approval in advance violated the Constitution because the seizure triggered the Just Compensation Clause of the Fifth Amendment. Id. at 631 (Douglas, J., concurring). The seizure, Justice Douglas argued, presented Congress with a fait accompli - a circumstance where it was bound to raise revenues that it might have chosen not to raise - in order to satisfy just compensation obligations that it might have chosen ex ante not to incur. Id. at 631-32. Even though legislative action might "often be cumbersome, time-consuming, and apparently inefficient," Justice Douglas wrote, such action was the process our Constitution envisioned. Id. at 629; see also LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 36-37 (1985) (describing Douglas's views on legislative silence). While the various concurrences in the case make it difficult to draw a coherent rule, many, perhaps a majority, of the Justices believed that the President can act when Congress is silent in a particularly grave emergency. See Youngstown Sheet & Tube Co., 343 U.S. at 637 (Jackson, J., concurring); id. at 662 (Clark, J., concurring); id. at 683-84 (Vinson, C.J., dissenting). We believe that, in cases where individual rights are put at risk by executive action, Congress's silence should not be construed as a green light for the executive absent extremely rare circumstances. See TRIBE, supra, at 39-40 (outlining the view that "there must be a heavy burden on anyone seeking to find a yes in Congress' silence" and that due process principles would generally require affirmative congressional action); Neal Kumar Katyal, Judges as Advicegivers, 50 STAN. L. REV. 1709, 1716, 1757-67 (1998) (describing the virtues of clear-statement rules when government action is close to the constitutional line).
68. Youngstown Sheet & Tube Co., 343 U.S. at 642 (Jackson, J., concurring). Justice Jackson also stated: Aside from suspension of the privilege of the writ of habeas corpus . . . [the Founders] made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so . . . . [T]he President of the [German] Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored. Id. at 650-51 (footnote omitted).
69. The fact that a formal war was not declared also gave Justice Frankfurter pause. See id. at 613 (Frankfurter, J., concurring) ("In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General."). Similarly, in the Pentagon Papers Case, N.Y. Times Co. v. United States, 403 U.S. 713 (1971), Justice Douglas rejected the executive branch's claim that "the power to wage war successfully" justifies a prior restraint, reasoning that "the war power stems from a declaration of war" and that it was therefore unnecessary to decide "what leveling effect the war power of Congress might have." Id. at 722 (Douglas, J., concurring).
70. Youngstown Sheet & Tube Co., 343 U.S. at 645-46 (Jackson, J., concurring); see also id. at 655 ("The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.").
71. Consider Justice Jackson's thoughts in his Korematsu dissent, explaining that if courts defer to the executive and uphold these unilaterally created tribunals, Americans will then be left with a dangerous precedent that can be used to undermine constitutional guarantees in other situations: [A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. . . . But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, . . . the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon . . . . Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes. . . . A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Korematsu v. United States, 323 U.S. 214, 245-46 (1944) (Jackson, J., dissenting).
72. See 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 4-6, at 668-69 (3d ed. 2000) (noting that even an undeclared war can have a "dramatic effect . . . on the civil liberties of Americans" and concluding that "the President should not be entitled to rely upon his augmented wartime powers when, without peculiar difficulty, he could have submitted his proposals to Congress for consideration as would have been required in peacetime").
73. Text of President Bush's State of the Union Address to Congress, N.Y. TIMES, Jan. 30, 2002, at A22 ("Thousands of dangerous killers, schooled in the methods of murder, often supported by outlaw regimes, are now spread throughout the world like ticking time bombs, set to go off without warning.").
74. E.g., Afghan Women and Children Relief Act of 2001, Pub. L. No. 107-81, 115 Stat. 811 (Dec. 12, 2001) (authorizing the provision of educational and health care assistance to the women and children of Afghanistan); Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597 (Nov. 19, 2001) (enhancing aviation security); An Act To Authorize the President To Exercise Waivers of Foreign Assistance Restrictions with Respect to Pakistan, Pub. L. No. 107-57, 115 Stat. 403 (Oct. 27, 2001); Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001); Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, 115 Stat. 230 (Sept. 22, 2001) (providing funds for airlines, victims of the September 11 plane crashes, and additional airline security); 2001 Emergency Supplemental Appropriations Act for Recovery from and Response to Terrorist Attacks on the United States, Pub. L. No. 107-38, 115 Stat. 220 (Sept. 18, 2001) (making emergency supplemental appropriations of up to $40 billion for additional disaster assistance, for antiterrorism initiatives, and for post-September 11 recovery); Expedited Payment for Heroic Public Safety Officers, Pub. L. No. 107-37, 115 Stat. 219 (Sept. 18, 2001) (providing expedited payment of certain benefits for public safety officers who were killed or injured due to the September 11 attacks); Joint Resolution: To Authorize the Use of United States Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). We do not question the claim that "the President alone has the power to speak or listen as a representative of the nation." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). Rather, we believe that this power over foreign affairs does not extend so far as to encompass the broad Order. Curtiss-Wright merely permitted broader-than-usual delegations of power from Congress to the President in the realm of foreign affairs; it did not go so far as to make such delegation superfluous. See Youngstown Sheet & Tube Co., 343 U.S. at 635-36 n.2 (Jackson, J., concurring); Alexander M. Bickel, Congress, the President, and the Power To Wage War, 48CHI.-KENT L. REV. 131, 137 (1971).
75. THE FEDERALIST No. 47, supra note 49, at 324 (James Madison).
76. Ex parte Milligan, 71 U.S. (1 Wall.) 2, 109-10 (1866).
77. Id. at 118-19. This is precisely the issue presented by the Military Order, which contemplates detention and "tri[al] by military commission . . . and . . . punish[ment] . . . including life imprisonment or death." Military Order, supra note 3, §§ 3(a), 4(a).
78. Milligan, 71 U.S. at 120-21, 127.
79. The Court described the importance of the jury trial provisions in the Constitution, as well as the Fourth, Fifth, and Sixth Amendments, stating that "so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication" that the original Constitution "encountered severe opposition; and, but for the belief that it would be so amended as to embrace them, it would never have been ratified." Id. at 119-20.
80. Id. at 121.
81. Id. at 122.
82. Id. at 121 (internal quotation marks deleted).
83. Id. at 119.
84. Id. at 136 (Chase, C.J., concurring and dissenting).
85. Id. at 137, 139-41 (emphasis added). The four Justices made clear that they "by no means assert[ed] that Congress can establish and apply the laws of war where no war has been declared or exists"; rather, their opinion was confined to situations "when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion." Id. at 140.
86. These limits on executive power were made clear by Attorney General Thomas Gregory's construction of Milligan's holding in 1918 in the case of Pable Waberski. Waberski was a German agent who had come to the United States during World War I. He had evidently admitted to plans to demolish various targets and to having previously demolished "munition barges, powder magazines, and other war utilities in the United States." Trial of Spies by Military Tribunals, 31 Op. Att'y Gen. 356, 357 (1918). Nevertheless, the Attorney General opined that a military trial would be unconstitutional: Milligan was a citizen of the United States. But the provisions of the Constitution upon which the decision was based are not limited to citizens . . . . . . . [Even] if there were no Milligan case to furnish us with an authoritative precedent, the provisions of the Constitution would themselves plainly bring us to the same conclusions as those set forth in the opinion of the court in that case, namely, that in this country, military tribunals, whether courts-martial or military commissions, can not constitutionally be granted jurisdiction to try persons charged with acts or offences committed outside of the field of military operations or territory under martial law or other peculiarly military territory, except members of the military or naval forces or those immediately attached to the forces such as camp followers. Were this not the correct conclusion, then any person accused of espionage, for instance, wherever apprehended and wherever the act charged may have been committed, would immediately become subject to the jurisdiction of a military court, and [the Fourth, Fifth, and Sixth Amendments] would be rendered nugatory in the cases of the most grave class of crimes, generally carrying the death penalty. Any other conclusion would be tantamount to applying martial law, where no justification for martial law exists and none had been declared, and would be a suspension of the Constitution during war times. Id. at 361-62. Attorney General Gregory then explained why he believed that Article III also "precludes the jurisdiction of a military court." Id. at 362. Just in case there was any doubt, the Attorney General then reproduced the passage from the Milligan majority quoted above, supra text accompanying note 74, that it was "not pretended that the commission was a court ordained and established by Congress," and that the President could not unilaterally create the tribunals because he "has his appropriate sphere of duty, which [is] to execute, not to make, the laws." 31 Op. Att'y Gen. at 361-62.
87. Ex parte Quirin, 317 U.S. 1 (1942).
88. David J. Danelski, The Saboteurs' Case, 1 J. SUP. CT. HIST. 61, 64 (1996).
89. Attorney General Francis Biddle later wrote that, as a result of this deception, "it was generally concluded that a particularly brilliant FBI agent, probably attending the school in sabotage where the eight had been trained, had been able to get on the inside." Id. at 65. Biddle also wanted trial secrecy to avoid making public certain information, including the fact of Dasch's cooperation, the FBI's ignoring of Dasch's phone call, and the delay in reporting discovery of the saboteurs' landing. Id. at 66.
90. Id. at 65.
91. Quirin, 317 U.S. at 23.
92. After the district court denied their habeas petitions, they filed their
93. Quirin, 317 U.S. at 24-25; see also In re Yamashita, 327 U.S. 1, 9 (1946) (stating that Congress "has not withdrawn [jurisdiction], and the Executive branch of the Government could not, unless there was suspension of the writ [of] . . . habeas corpus"); id. at 30 (Murphy, J., dissenting) (stating that the majority "fortunately has taken the first and most important step toward insuring the supremacy of law and justice in the treatment of an enemy belligerent" by affording rights of habeas corpus and rejecting the "obnoxious doctrine asserted by the Government").
94. Quirin, 317 U.S. at 24-25; see also In re Yamashita, 327 U.S. 1, 9 (1946) (stating that Congress "has not withdrawn [jurisdiction], and the Executive branch of the Government could not, unless there was suspension of the writ [of] . . . habeas corpus"); id. at 30 (Murphy, J., dissenting) (stating that the majority "fortunately has taken the first and most important step toward insuring the supremacy of law and justice in the treatment of an enemy belligerent" by affording rights of habeas corpus and rejecting the "obnoxious doctrine asserted by the Government").
95. E.g., Quirin, 317 U.S. at 26 (stating that "[t]he Constitution thus invests the President, as Commander in Chief, with the power to wage war which Congress has declared" (emphasis added)). In other places, the Court used the formulation "time of war," a formulation that, for reasons we explain, infra text accompanying notes 106-113, should be construed narrowly. See, e.g., Quirin, 317 U.S. at 25 ("But the detention and trial of petitioners - ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger - are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted." (emphasis added)); id. at 35 (stating that "those who during time of war pass surreptitiously from enemy territory into our own . . . have the status of unlawful combatants punishable as such by military commission" (emphasis added)); id. at 42 ("[I]t has never been suggested in the very extensive literature of the subject that an alien spy, in time of war, could not be tried by military tribunal without a jury." (emphasis added)). President Roosevelt's Proclamation itself stated that "all persons who are subjects, citizens or residents of any nation at war with the United States. . . and who during time of war enter or attempt to enter the United States . . . through coastal or boundary defenses, 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." Id. at 22-23 (emphasis added).
96. Id. at 29 ("It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions.").
97. See Act of Aug. 29, 1916, ch. 418, § 3, art. 82, 39 Stat. 619, 663 ("Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by general court-martial or by a military commission, and shall, on conviction thereof, suffer death." (emphasis added)); id. § 3, art. 81, 39 Stat. at 663 ("Whosoever relieves the enemy with arms, ammunition, supplies, money, or other thing . . . shall suffer death, or such other punishment as a court-martial or military commission may direct." (emphasis added)).
98. Quirin, 317 U.S. at 41. In support of a reading that treats the Court as having found adequate statutory authorization in Article 82, consider also the Court's later description that, in Quirin, "the military commission's conviction of saboteurs . . . was upheld on charges of violating the law of war as defined by statute." Madsen v. Kinsella, 343 U.S. 341, 355 n.22 (1952) (emphasis added). The language "defined by statute" may of course have been imprecise, as other language about Quirin upholding "conviction[sj" certainly was.
99. Brief of the Respondent app. III, at 78, Quirin (Orig. Nos. 1-7), reprinted in 39 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 397, 479 (Philip B. Kurland & Gerhard Casper eds., 1975) [hereinafter LANDMARK BRIEFS] (emphasis added).
100. Id. at 79, reprinted in 39 LANDMARK BRIEFS, supra note 90, at 480 (emphasis added).
101. Quirin, 317 U.S. at 27. This provision now reads: "The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals." 10 U.S.C. § 821 (1994) (emphasis added).
102. Quirin, 317 U.S. at 35, 46. At the time the Supreme Court rendered its decision (but not its opinion), the saboteurs had not yet been found guilty of any offenses. See Danelski, supra note 80, at 71.
103. Indeed, President Bush recently stated, "I would remind those who don't understand the decision I made that Franklin Roosevelt made the same decision in World War II. Those were extraordinary times, as well." Mike Allen, Bush Defends Order for Military Tribunals, WASH. POST, Nov. 20, 2001, at A14. In another World War II case, the Court faced the issue of the executive's authority to order military tribunals in the Philippines to try violators of the law of war. In In re Yamashita, 327 U.S. 1 (1946), General Yamashita of the Imperial Japanese Army was tried and convicted by a military commission ordered under the President's authority. The Court pointed to three executive announcements about the need for such military tribunals and three treaties that were ratified and codified in the United States Code that made what Yamashita did a crime. Id. at 10-11, 15-16. Yamashita read Quirin to permit military tribunals to try offenses against the law of war, but it explicitly tethered its view to a declaration of war. The Yamashita Court held that the trial and punishment of enemies who violate the law of war is "an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war. That sanction is without qualification as to the exercise of this authority so long as a state of war exists - from its declaration until peace is proclaimed." Id. at 11-12 (emphasis added); see also id. at 12 ("The war power, from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power . . . to remedy, at least in ways Congress has recognized, the evils which the military operations have produced." (emphasis added)). The Court went on to note that its constitutional holding was limited to that circumstance only, and that "it is unnecessary to consider what, in other situations, the Fifth Amendment might require, and as to that no intimation one way or the other is to be implied." Id. at 23.
104. Joint Resolution of Dec. 11, 1941, Pub. L. No. 77-331, 55 Stat. 796, 796 (emphasis added). In Quirin, total war was involved, for the Nazi saboteurs "were invaders, their penetration of the boundary of the country, projected from the units of a hostile fleet, was in the circumstances of total war a military operation, and their capture, followed by their surrender to the military arm of the government, was a continuance of the same operation." CORWIN, supra note 54, at 120.
105. The Resolution states: [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. Joint Resolution: To Authorize the Use of United States Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States, Pub. L. No. 107-40, 115 Stat. 224, 224 (2001). Congress intentionally rejected proposed White House language that would have authorized the use of force against all nations that harbor terrorists, whether or not connected to September 11. See John Lancaster & Helen Dewar, Congress Clears Use of force, $40 Billion in Emergency Aid, WASH. POST, Sept. 15, 2001, at A4; see also 147 CONG. REC. S9949 (daily ed. Oct. 1, 2001) (statement of Sen. Byrd) ("[T]he use of force authority granted to the President extends only to the perpetrators of the September 11 attack. It was not the intent of Congress to give the President unbridled authority . . . to wage war against terrorism writ large . . . ."); id. at S9951 (statement of Sen. Levin) (making a similar point). The proposed White House resolution evidently stated that the President was authorized to use force not only against those countries and entities responsible for the September 11 attacks, but also "to deter and pre-empt any future acts of terrorism or aggression against the United States." 147 CONG. REC. S9951 (daily ed. Oct. 1, 2001) (reprinting the text of the proposed White House resolution).
106. 147 CONG. REC. H5638, H5680 (daily ed. Sept. 14, 2001) (statement of Rep. Conyers); see also id. at H5653 (statement of Rep. Barr) (arguing that "[w]e need a declaration of war" from Congress to "[g]ive the President the tools, the absolute flexibility he needs").
107. Military Order, supra note 3, § 1(a).
108. Id. §§ 1(e), 4(a) (emphasis added).
109. See 18 U.S.C. § 2339 (1994) (providing felony punishments for acts of terrorism).
110. Even conceding that military tribunals are permissible for the narrow category of unlawful belligerents, the Order is much too broad. Attorney General Ashcroft has said, for example, that "members of al Qaeda are unlawful belligerents under the law of war." Terrorism Hearings, supra note 47 (statement of John Ashcroft, Attorney General). While it may be relatively easy to demonstrate that an al Qaeda member was present in America without a uniform or identifying mark, it may be harder to prove that such an individual had a "hostile purpose" of the type contemplated in Quirin: that of "destroying property used or useful in prosecuting the war . . . [or] directed at the destruction of enemy war supplies and the implements of their production and transportation, quite as much as at the armed forces." Ex parte Quirin, 317 U.S. 1, 37 (1942).
111. The Court said that it had "no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals" and that "[w]e hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission." Quirin, 317 U.S. at 45-46. Indeed, Quirin recognized that the use of tribunals may be conditioned by the Sixth Amendment. See id. at 29 (assuming that some offenses against the law of war are "constitutionally triable only by a jury," as Milligan held).
112. Quirin insisted that the Milligan majority's dictum that not even Congress had power to establish military tribunals when civilian courts were open applied only to a defendant who, like Milligan but unlike the Nazi saboteurs, had not been "a part of or associated with the armed forces of the enemy," had never even "been a resident [and thus a citizen] of any of the states" at war with the Union, and hence "was a non-belligerent, not subject to the law of war." Id. at 45. But the Quirin implication that Congress might well have constitutional power to establish military tribunals even where civilian courts were available to try unlawful enemy belligerents -who, like the Nazi saboteurs (and seemingly the al Qaeda terrorists), had indeed been members of an enemy armed force before going under cover to attack American targets - never went so far as to suggest that the President might have the power to create such tribunals for unlawful enemy belligerents on his own, even after a declaration of war and, a fortiori, without any such declaration. See supra note 87 (discussing Quirin's express disclaimer regarding unilateral presidential authority). And language in Milligan - language whose reach the Quirin Court said nothing to question or restrict - highlighted the fact that the nineteenth-century Congress had vested civilian courts with jurisdiction to try the precise offenses of which Milligan stood accused. Milligan evidently read Congress's silence about whether such charges could be tried in military tribunals to constitute a lack of the requisite affirmative authorization. See Milligan, 71 U.S. at 122 ("Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it; because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them.").
113. See 10 U.S.C. § 821 (1994).
114. See Hohn v. United States, 524 U.S. 236, 251 (1998) (stating that "'[considerations of stare decisis have special force in the area of statutory interpretation'" (citation omitted)); Lorillard v. Pons, 434 U.S. 575, 580 (1978) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change."); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-06 (1932) (Brandeis, J., dissenting) (outlining why heightened rules of stare decisis apply in statutory settings); 1 TRIBE, supra note 64, §§ 1-16, 3-3, at 84 & n.42, 251-54.
115. See Michael A. Newton, Continuum Crimes: Military Jurisdiction over Foreign Nationals Who Commit International Crimes, 153 MIL. L. REV. 1, 88 n.413 (1996) (stating that neither "the history of military tribunals in United States jurisprudence [nor] the rules of international law warrant such a broad and ambiguous interpretation of the phrase" and that the "better approach . . . is for Congress to amend [§ 821] and make the jurisdictional basis absolutely clear to both potential criminals and their defense attorneys"). It is also notable that some of the main proponents of military tribunals for terrorists have suggested that affirmative congressional authorization is necessary. See Spencer J. Crona & Neal A. Richardson, Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism, 21 OKLA. CITY U. L. REV. 349, 398-99 (1996) (stating that the tension between Quirin and Milligan "can be resolved simply by Congress declaring terrorism to be a form of unlawful belligerency, from which ordinary law no longer secures either public safety or private rights, and further declaring terrorists to be enemy armed forces").
116. See Michael A. Newton, Continuum Crimes: Military Jurisdiction over Foreign Nationals Who Commit International Crimes, 153 MIL. L. REV. 1, 88 n.413 (1996) (stating that neither "the history of military tribunals in United States jurisprudence [nor] the rules of international law warrant such a broad and ambiguous interpretation of the phrase" and that the "better approach . . . is for Congress to amend [§ 821] and make the jurisdictional basis absolutely clear to both potential criminals and their defense attorneys"). It is also notable that some of the main proponents of military tribunals for terrorists have suggested that affirmative congressional authorization is necessary. See Spencer J. Crona & Neal A. Richardson, Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism, 21 OKLA. CITY U. L. REV. 349, 398-99 (1996) (stating that the tension between Quirin and Milligan "can be resolved simply by Congress declaring terrorism to be a form of unlawful belligerency, from which ordinary law no longer secures either public safety or private rights, and further declaring terrorists to be enemy armed forces").
117. Hearings on H.R. 2498 Before the Subcomm. of the House Comm. on Armed Services, 81st Cong. 1229 (1949).
118. United States v. Averette, 19 C.M.A. 363, 365 (1970) (emphasis added). The same court followed this line of reasoning in Zamora v. Woodson, 19 C.M.A. 403 (1970), holding that the term "in time of war" means "a war formally declared by Congress," and that the military effort in Vietnam could not qualify as such. Id. at 404; see also Robb v. United States, 456 F.2d 768, 771 (Ct. Cl. 1972) (holding that "short of a declared war," a court-martial did not possess jurisdiction over a civilian employee of the Armed Forces). In a rather different setting during the Korean War, the military courts have found that a special court-martial had jurisdiction over a substantive offense by a soldier, that of sleeping at one's post during time of war. United States v. Bancroft, 3 C.M.A. 3 (1953). The court pointed to many indicia of a wartime situation, including special "national emergency legislation." Id. at 5; see also United States v. Ayers, 4 C.M.A. 220 (1954) (following Bancroft). While members of our military might be subject to additional punishment based on statutes that aggravate penalties during wartime, to apply the jurisdiction of the UCMJ to those not ordinarily subject to it requires an affirmative act of Congress. As the Averette court wrote: We emphasize our awareness that the fighting in Vietnam qualifies as a war as that word is generally used and understood. By almost any standard of comparison - the number of persons involved, the level of casualties, the ferocity of the combat, the extent of the suffering, and the impact on our nation - the Vietnamese armed conflict is a major military action. But such a recognition should not serve as a shortcut for a formal declaration of war, at least in the sensitive area of subjecting civilians to military jurisdiction. Averette, 19 C.M.A. at 365-66.
119. Averette, 19 C.M.A. at 365.
120. E.g., Exparte Quirin, 317 U.S. 1, 28-29 (1942) (relying on the fact that tribunals were used "in time of war"); see also Madsen v. Kinsella, 343 U.S. 341, 348-49 (1952) (using a similar formulation).
121. E.g., Kent v. Dulles, 357 U.S. 116, 129-30 (1958) (holding that the Secretary of State could not deny passports on the basis of Communist Party membership without a clear delegation from Congress, and that this permission could not be "silently granted" (emphasis added)); see also Valentine v. United States ex rel Neidecker, 299 U.S. 5, 9 (1936) (preventing an extradition where the treaty did not provide for it, out of a concern for liberty, stating that "the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against [an individual] must be authorized by law. . . . [T]he legal authority does not exist save as it is given by an act of Congress"). Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981), applied a looser definition of "implied authorization from Congress," but did not find that lack of congressional voice would constitute implicit authorization. See 1 TRIBE, supra note 64, § 4-7, at 674-75. In Dames & Moore, a case in which a constitutional right was probably not at stake in any event, see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 9-7, at 612-13 (2d ed. 1988), the Court approved an executive order that terminated all litigation between United States nationals and Iran in return for the establishment of a claims tribunal to arbitrate the disputes. See 1 TRIBE, supra note 64, § 4-7, at 674-75. The Court did not find explicit authorization by Congress to extinguish pending claims but grounded a finding of implied authorization in Congress's passage of the International Claims Settlement Act of 1949, which approved a different executive claims settlement action and provided a procedure to implement future settlement agreements. See Dames & Moore, 453 U.S. at 680. Even so, Dames & Moore provides little support for the Military Order. In the current case, Congress has passed no such legislation that recognizes or ratifies the President's authority to convene military tribunals without a declaration of war, and, unlike the questionable property right at issue in Dames & Moore, the constitutional rights now at stake - life and liberty - are anything but dubious. As such, Congress's implicit approval cannot be found here as it was (perhaps questionably) in Dames & Moore. And in any event, the Dames & Moore decision expressly disclaimed attempts to use its precedent in very different cases: "We attempt to lay down no general 'guidelines' covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case." Id. at 661.
122. Even the freedoms of speech and the press may be contingent at times on congressional authorization to curtail them when national security is at stake. In New York Times Co. v. United States, 403 U.S. 713 (1971), the Court, in a per curiam opinion, denied the President an injunction to block the New York Times and the Washington Post from publishing certain documents which the administration claimed would damage the military effort in Vietnam. Justice Black observed: The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press . . . even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. Id. at 718 (Black, J., concurring). Justice Marshall observed that Congress had considered legislation that would have made such disclosure criminal and "[i]f the proposal . . . had been enacted, the publication of the documents involved here would certainly have been a crime." Id. at 747 (Marshall, J., concurring); see also id. at 740 (White, J., concurring) (noting that Congress "ha[d] not, however, authorized the injunctive remedy against threatened publication"). Justice White's reluctance to defer to the executive, "[a]t least in the absence of legislation by Congress," id. at 732 (White, J., concurring), was echoed by Justice Douglas's indication that the case might have been different with specific congressional authorization or a declaration of war, id. at 722 (Douglas, J., concurring); see also supra note 61; cf. DAVID RUDENSTINE, THE DAY THE PRESSES STOPPED 106 (1996) (quoting Alexander Bickel's argument in the case that "any plausible conception of the separation of powers doctrine barred the government from suing the Times . . . . [T]he suit could go forward only if Congress had passed a statute authorizing it").
123. While some war powers, such as rights of prize, have been found to exist even when Congress has not formally declared war, in such cases individual rights were not as severely threatened, and Congress had spoken. See, e.g., Bas v. Tingy, 4 U.S. (4 Dall.) 37, 39 (1800) (opinion of Moore, J.) (stating that the "case depends on the construction of the act" providing for taking "enemy" ships); id. at 42 (opinion of Washington, J.) (examining "the true construction of the act" and "evidence of legislative will"); id. at 44-45 (opinion of Chase, J.) (analyzing the " acts of congress . . . to show" that Congress intended France to be an "enemy" under the relevant Acts); id. at 46 (opinion of Paterson, J.) (making a similar point).
124. See Clinton v. City of New York, 524 U.S. 417, 449-53 (1998) (Kennedy, J., concurring); Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 545 (1981) (Rehnquist, J., dissenting); Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring); Cal. Bankers Ass'n v. Schultz, 416 U.S. 21, 91-93 (1974) (Brennan, J., dissenting); see also 1 TRIBE, supra note 64, § 5-19, at 977-1011. But see Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001) (finding no violation of the nondelegation doctrine); Loving v. United States, 517 U.S. 748 (1996).
125. Korematsu v. United States, 323 U.S. 214 (1944). The Korematsu decision did not "decide the serious constitutional issues . . . when an assembly or relocation order is applied or is certain to be applied" but instead only upheld the order excluding Fred Korematsu from a "military area." Id. at 222; see also Exparte Endo, 323 U.S. 283, 308-10 (1944) (Roberts, J., concurring in the judgment) (stating that in Endo, as in Korematsu, the Court should have decided the constitutionality of the detention program).
126. Danelski, supra note 80, at 80 (quoting a memorandum from Justice Frankfurter).
127. Id. at 65-68.
128. See HOWARD BALL & PHILLIP J. COOPER, OF POWER AND RIGHT: HUGO BLACK, WILLIAM O. DOUGLAS, AND AMERICA'S CONSTITUTIONAL REVOLUTION 118 (1992)
129. (quoting WILLIAM O. DOUGLAS, THE COURT YEARS, 1939-1975 (1980)).
130. William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1363 (1988); see also, e.g., Johnson v. Transp. Agency, 480 U.S. 616, 672 (1987) (Scalia, J., dissenting); 1 TRIBE, supra note 64, § 3-3, at 252-53 (detailing the factors considered and the justifications provided when the Court decides to overrule statutory precedents). There are good reasons, generally speaking, to weigh statutory precedents less heavily than the conventional wisdom might suggest. See Eskridge, supra, at 1403-08 (describing why Congress might not be able to correct a judicial error and outlining other reasons).
131. Justice Frankfurter argued: [T]he relevant demands of stare decisis do not preclude considering, for the first time thoroughly and in the light of the best available evidence of congressional purpose, a statutory interpretation which started as an unexamined assumption on the basis of inapplicable citations and has the claim of a dogma solely through reiteration. Monroe v. Pape, 365 U.S. 167, 220-21 (1961) (Frankfurter, J., dissenting).
132. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (noting that, when reexamining a prior holding, the Court considers, among other things, "whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation").
133. See, e.g., Monroe, 365 U.S. at 221-22 (Frankfurter, J., dissenting); Eskridge, supra note 119, at 1376 & n.78 (arguing that this "exception helps explain many of the Court's overrulings of statutory precedents" and providing a useful list of examples). Contemporary congressional authorization is particularly needed for the military tribunals in the present circumstances, given how the Constitution's interpretation has evolved since World War II. See Katyal, supra note 41, at 1346-59 (discussing how Congress can "update" constitutional guarantees).
134. 327 U.S. 304 (1946).
135. Id. at 344 (Burton, J., dissenting).
136. See id. at 316 (majority opinion) (rejecting the government's argument that "[w]hen Congress passed the Organic Act it simply enacted the applicable language of the Hawaiian Constitution and with it the interpretation of that language by the Hawaiian supreme court").
137. Id. at 315.
138. Id. at 317.
139. Id. at 322, 324 (citations omitted).
140. See, e.g., United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (describing how the text of the Fourth Amendment, unlike the texts of the Fifth and Sixth Amendments, secures only rights of "the people," itself a term that seemingly precludes extraterritorial application); id. at 268-69 (describing precedent with respect to the Insular Cases, such as Balzac v. Porto Rico, 258 U.S. 298 (1922)); Johnson v. Eisentrager, 339 U.S. 763, 784-85 (1950) (expressing serious doubts about the extraterritorial application of the Constitution to "enemy elements"). Several Justices, however, have suggested that parts of the Constitution do have extraterritorial reach. See, e.g., Verdugo-Urquidez, 494 U.S. at 281-85 (Brennan, J., dissenting) (arguing that government action abroad can have a sufficient nexus with domestic action to justify extraterritorial application); Burns v. Wilson, 346 U.S. 137, 152 (1953) (Douglas, J., dissenting) (observing that Quirin's ruling that "military tribunals are not governed by the procedure for trials prescribed in the Fifth and Sixth Amendments" does not entail the proposition "that all the rights covered by the Fifth and the Sixth Amendments were abrogated by Art. I, § 8, cl. 14 of the Constitution, empowering Congress to make rules for the armed forces," for it is "plain from the text of the Fifth Amendment that that position is untenable," and the Court has "never . . . held" otherwise); Johnson v. Eisentrager, 339 U.S. 763, 797-98 (1950) (Black, J., dissenting) (arguing that the Constitution does apply extraterritorially).
141. There may be circumstances in which this third reason, as its obvious derivation from Milligan suggests, is applicable domestically as well. For example, on this rationale military tribunals might have been appropriate in at least part of New York City in the days immediately following the World Trade Center attacks, when Foley Square was closed and the Southern District of New York was not fully operating. Such tribunals could not be used in other areas, however, and would have had to cease operating in New York City once the federal courts became operational.
142. Madsen v. Kinsella, 343 U.S. 341 (1952). Madsen contained broad language about Article 15 of the Articles of War, reading it to establish that "Congress has not deprived [military] commissions or tribunals of the existing jurisdiction which they had over such offenders and offenses." Id. at 351-52. But that judicial language, which could (but need not) permit congressional silence to constitute assent, must be construed in light of the fact that the trial in Madsen occurred outside the United States following a declared war, and in circumstances in which enemy territory was conquered and there was a need for some sort of legal authority Indeed, Madsen stated that military commissions "have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war," id. at 346, and noted that these tribunals derive their authority from Congress's power to declare war, id. at 346 n.9 (quoting WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 831 (2d ed. 1920)), and from the occupation of Germany and the recent "cessation of hostilities" after a "time of war," id at 348.
143. United States v. Reiter, 27 F. Cas. 768 (1865) (No. 16,146), discussed in Madsen, 343 U.S. at 347 n.9, 360 n.25. There were two acts of Congress that appeared to grant the President the power to establish military tribunals, and Lincoln had invoked them both in the Milligan case, but the provisional court did not mention them. The first, the Act of February 28, 1795, provided: [W]henever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, . . . it shall be lawful for the President of the United States, to call forth the militia . . . to suppress such combinations, and to cause the laws to be duly executed. Act of Feb. 28, 1795, ch. 36, § 2, 1 Stat. 424, 424 (current version at 10 U.S.C. § 332 (1994)). The second, the Act of March 3, 1807, stated: [I]n all cases of insurrection, or obstruction to the laws . . . where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary . . . . Act of Mar. 3, 1807, ch. 39, 2 Stat. 443, 443 (current version at 10 U.S.C. § 331).
144. Madsen, 343 U.S. at 345 n.7 ("There was no nonmilitary court of the United States in Germany."); id. at 356-60 (describing need for military tribunals in Germany given the absence of civilian authority); Reiter, 21 F. Cas. at 771 (stating that President Lincoln's courts "were the only institutions found there at the time the military authority of the United States was by force of its arms established there" and that "[n]o country can exist without a government of some kind . . . [because] order must be preserved and security to person and estate assured"). Reiter went on to state that, if Louisiana was to be called "domestic" land, as opposed to being "deemed foreign territory," then the President could be without power to establish such tribunals. Reiter, 27 F. Cas. at 775. Indeed, President Lincoln's Order itself recognized the distinction between assuring punishment for past acts and preserving order and selected the latter rationale, stating that the Civil War had "temporarily subverted and swept away the civil institutions of [Louisiana], including the judiciary and the judicial authorities of the Union," so it was "indispensably necessary that there shall be some judicial tribunal existing there capable of administering justice." Id. at 770.
145. See Mechs.' & Traders' Bank v. Union Bank, 89 U.S. (22 Wall.) 276, 296 (1874) (holding that "the power to establish by military authority courts for the administration of civil as well as criminal justice in portions of the insurgent States occupied by the National forces, is precisely the same as that which exists when foreign territory has been conquered and is occupied by the conquerors"); The Grapeshot, 76 U.S. (9 Wall.) 129, 132-33 (1869). In the latter case, the Court stated: [I]t became the duty of the National government, wherever the insurgent power was overthrown, . . . to provide as far as possible, so long as the war continued, for the security of persons and property and for the administration of justice . . . . We have no doubt that the Provisional Court of Louisiana was properly established by the President in the exercise of his constitutional authority during war; or that Congress had power, upon the close of the war, and the dissolution of the Provisional Court, to provide for the transfer of cases pending in that court, and of its judgments and decrees, to the proper courts of the United States. The Grapeshot, 76 U.S. (9 Wall.) at 132-33.
146. See Reid v. Covert, 354 U.S. 1, 35 nn.62-63 (1957) (stating that Madsen was not controlling" in a case involving the military trials of dependent wives of American servicemen abroad in times of peace because Madsen "concerned trials in enemy territory which had been conquered and held by force" and that in "such areas the Army commander can establish military or civilian commissions as an arm of the occupation to try everyone in the occupied area, whether wey are connected with the Army or not" and quoting Milligan's formulation that the Constitution "is a law . . . equally in war and peace").
147. Indeed, recent modifications to the Posse Comitatus Act - an Act passed to prevent the military from becoming part of civilian affairs in the wake of the martial law of the Civil War - suggest precisely this possibility. See 18 U.S.C. § 1385 (1994) ("Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."). That cornerstone statute reflects an underlying presumption against blurring military and civilian life unless Congress clearly authorizes otherwise or the Constitution so demands, but it has been modified recently with respect to narcotics and immigration laws. Department of Defense Authorization Act, Pub. L. No. 97-86, § 905, 95 Stat. 1099, 1114-16 (1982) (codified as amended at 10 U.S.C. §§ 371-380) (authorizing the Secretary of Defense to furnish equipment and personnel to assist civilian agencies in enforcing drug and immigration laws, but preventing the military, with the exception of the Coast Guard, from conducting "a search and seizure, an arrest, or other similar activity").
148. Consider also the following statement, made in the context of the international enslavement of women through forced prostitution: "The United States has declared war on organized crime figures who rape and exploit women." 147 CONG. REC. H9111 (daily ed. Dec. 11, 2001) (statement of Rep. Smith).
149. There is, to be sure, a clear difference between trying and punishing drug dealers who kill, and waging a war against an international organization that has itself declared war on the United States; has vowed to kill our citizens wherever it might find them; and has launched a devastating attack on a major city and against the center of our defense establishment. Just as Kristallnacht went beyond the crime of breaking Jewish shopkeepers' windows precisely because it was part of a systematic assault on the Jewish people, so the recent terrorist attacks differ even from the killings associated with narcoterrorism and firearms because they are part of a lethal jihad against the American people. Even so, giving the President the ability to decide on his own what constitutes a "war" and to constitute his own tribunals to adjudicate the guilt of those who are said to have launched illegal warfare against us - authority that President Bush evidently claims - could well set a dangerous precedent, particularly because today's lack of a formal declaration of war is exacerbated by the lack of a well-defined enemy nation to defeat and by circumstances in which there cannot be anything like an authoritative victory marked by an act of surrender and followed by terms of peace.
150. Ex parte Quirin, 317 U.S. 1, 37-38 (1942).
151. See In re Yamashita, 327 U.S. 1, 79 (1945) (Rutledge, J., dissenting). Justice Rutledge wrote: Not heretofore has it been held that any human being is beyond [the Fifth Amendment's] universally protecting spread in the guaranty of a fair trial in the most fundamental sense. That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider for others, perhaps ultimately for all. Id.
152. If President Clinton during a budget deadlock in his administration had grown frustrated and had decided to proclaim his budget proposal the law of the land, directing his Secretary of the Treasury to begin disbursements, Congress would of course have had the power to trump that budget" at once with one of its own, but the existence of such trumping power would not have sufficed to make the President's initial action constitutional.
153. The Court so held, over the dissenters' contrary view. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 676-77 (1952) (Vinson, C.J., dissenting) (quoting Truman's first message to Congress that "[i]t may be that the Congress will deem some other course to be wiser. . . . I do not believe the Congress will favor any of these courses of action, but that is a matter for the Congress to determine," and his second message that "[t]he Congress can, if it wishes, reject the course of action I have followed in this matter").
154. While the Order does not purport to define what constitutes "international terrorism," a recent definition of the term by Congress states that it covers "activities that," when two other conditions are met, "involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State." 18 U.S.C. § 2331 (1994), incorporated by reference in Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-37, § 802, 115 Stat. 272, 802. The two other conditions are that the activities "appear to be intended to intimidate or coerce a civilian population" or otherwise influence or affect the conduct of the government, and that the activities "occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished." Id. The Military Order apparently modifies the first condition to say that the intent to cause adverse effects to the United States "economy" is enough, see Military Order, supra note 3, § 2(a)(1)(ii). The second condition would probably be met by someone using the "means" of the Internet - a mechanism that by definition transcends national boundaries.
155. Because all of the facts about John Walker Lindh have not yet come to light, we do not mean to discuss his particular circumstances.
156. U.S. CONST. amend. XIV, § 1; see also Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) ("The Fourteenth Amendment to the Constitution is not confined to the protection of citizens."). The language of the Equal Protection Clause, which protects "persons," intentionally differs from that of the Privileges or Immunities Clause in the same Amendment, which protects only "citizens." See John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1442-47 (1992) (providing evidence that the Equal Protection Clause was intentionally written as it was specifically in order to extend certain rights to aliens).
157. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 449 (1857). See generally AKHIL REED AMAR, THE BILL OF RIGHTS 170-72 (1998) (tracing the historical origins of the Equal Protection Clause and its use of the word "persons" to Dred Scott); id. at 217-18 n.* (stating that the Equal Protection Clause is "paradigmatically" concerned with "nonvoting aliens").
158. AMAR, supra note 146, at 173 (quoting a draft of the Fourteenth Amendment) (emphasis added).
159. CONG. GLOBE, 39th Cong., 1st Sess. 1090 (1866). Similarly, Senator Howard stated that the Amendment was necessary to "disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State." Id. at 2765-66.
160. 42 U.S.C. § 1981(a) (1994) (emphasis added). The law began as part of the Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27, but was later modified in 1870 to protect not only "citizens," but all "persons." See Voting Rights Act of May 31, 1870, ch. 114, § 16, 16 Stat. 140, 144; Yick Wo, 118 U.S. at 369 (stating that the provisions of the Equal Protection Clause "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws," and that the predecessor statute to § 1981 was "accordingly enacted"); Harrison, supra note 145, at 1442-47 (describing the genesis of § 1981).
161. Before 1991, courts had read § 1981 to apply to the federal government. E.g., Bowers v. Campbell, 505 F.2d 1155, 1157 (9th Cir. 1974) (holding that "section 1981 applies to employment discrimination by federal officials; it is not confined to state or private action"). In 1991, however, Congress added a new subsection with the following language: "The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, 1072 (codified as amended at 42 U.S.C. § 1981(c)). Accordingly, some courts have found that § 1981 does not apply to the federal government. E.g., Lee v. Hughes, 145 F.3d 1272, 1277 (11th Cir. 1998). The holding in Lee is quite odd, however, for the 1991 language is expansive rather than restrictive in thrust, and Congress did not delete the word "territory" from the existing statute. It thus seems plain that Congress did not intend to limit, but only to supplement, existing civil rights laws by confirming their applicability to nonstate as well as state actors. See La Compania Ocho, Inc. v. U.S. Forest Serv., 874 F. Supp. 1242, 1251 (D.N.M. 1995) (arguing that the 1991 amendments did not undercut the applicability of § 1981 to the federal government because the amendments were "intended to expand the scope of civil rights protection, not limit it"). In any event, § 1981 may make it difficult for states to comply with the Military Order. See Military Order, supra note 3, § 2(c) (requiring states to turn over "individual[s] subject to this Order" to the "Secretary of Defense"); id. § 7(d) (defining "state").
162. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) (quoting Buckley v. Valeo, 424 U.S. 1, 93 (1976)); Boiling v. Sharpe, 347 U.S. 497 (1954).
163. See, e.g., Fiallo v. Bell, 430 U.S. 787, 796 (1977); Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 104, 114-16 (1976); Mathews v. Diaz, 426 U.S. 67, 81-84 (1976).
164. See, e.g., In re Griffiths, 413 U.S. 717, 721-22 (1973) (finding alienage to be a suspect classification); Graham v. Richardson, 403 U.S. 365, 372 (1971) (stating that state "classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny" and that "[a]liens as a class are a prime example of a 'discrete and insular' minority" (citations omitted)).
165. Mathews, 426 U.S. at 81-82.
166. See Hampton, 426 U.S. at 104-05, 115 (holding such foreign policy options to be beyond the mandate of the Civil Service Commission, whose blanket exclusion of all aliens from the federal civil service was accordingly held to violate Fifth Amendment due process).
167. Id. at 104, 115.
168. While the Court has not adopted a formula for heightened scrutiny when quasi-fundamental rights are at stake for quasi-suspect classes, several decisions essentially suggest such a principle. See, e.g., Plyler v. Doe, 457 U.S. 202, 221, 230 (1982) (stating that, because education plays a "fundamental role in maintaining the fabric of our society," a Texas statute denying free public schooling to children who were not legally admitted into the United States must be justified by a "substantial" state interest and finding no such justification); Craig v. Boren, 429 U.S. 190, 210-11 n.* (1976) (Powell, J., concurring) (suggesting that the cases reveal more than two tiers of equal protection analysis).
169. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996) (holding that due process and equal protection combine to prevent states from limiting appeals from custody-termination decisions to those parents who can afford record preparation fees); Douglas v. California, 372 U.S. 353, 355 (1963) (deciding
170. See, e.g., Harris v. McRae, 448 U.S. 297, 323 (1980) ("[T]his Court has held repeatedly that poverty, standing alone, is not a suspect classification."); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24 (1973) (rejecting strict scrutiny of Texas's reliance on local property taxation in school system financing and stating that "where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages").
171. This latter point is especially significant, and quite easy to overlook. A situation like that in Quirin, in which we are at war with a particular nation, is one in which citizens of that nation who are soldiers (albeit not visibly) of its armed forces are distinguishable in principle from American citizens who join in their clandestine and hostile effort to injure Americans but are not members of any enemy nation or other organization with which we are at war. To be sure, the Quirin Court saw no justification for regarding such citizen turncoats as less eligible for trial by military tribunals than their noncitizen counterparts. But a distinction in that context between the two categories of unlawful belligerents would hardly have been irrational. In contrast, in a situation like the one we confront vis-à-vis al Qaeda, where we are at war with a supranational terrorist organization drawing support from many nations but being identifiable with none of them, it seems irrational to distinguish among unlawful belligerents - all of whom are members of the same terrorist group and with all of whom we are thus at war - on the basis of whether or not they happen also to be citizens of the United States as opposed to being citizens of, say, Saudi Arabia, France, or some other nation that may or may not be among the sponsors of terror but with which we are not, in any event, at war. In other words, it is one thing to give preferential treatment to U.S. citizens over their alien counterparts when that means giving less favorable treatment to citizens of a nation with which we are at war (and members of that enemy nation's military), and quite another thing to give preferential treatment to U.S. citizens when noncitizenship, rather than being a proxy for membership in the armed forces of the enemy, simply means that one is merely an unlawful belligerent rather than being a traitor as well - hardly a reason to be treated more harshly.
172. To be sure, if America is at war with one or more sovereign states, as it was in World War II with Germany, Japan, and Italy (the now-old "axis" powers), the federal government's decision to treat citizens of those enemy states in a harsher manner than it treats American citizens, and indeed even American citizens who might have taken up with the enemy, at least has a long-standing statutory tradition. See supra text accompanying note 53 (describing the still-existing Alien Enemy Act of 1798, which authorizes the government to detain and deport nationals of a nation against which Congress has declared war).
173. Ry. Express Agency v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring); see also Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring) ("Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.").
174. See supra text accompanying note 149.
175. 494 U.S. 259 (1990); see supra note 129.
176. Goldberg v. Kelly, 397 U.S. 254 (1970) (requiring a hearing prior Io the termination of welfare benefits).
177. Miranda v. Arizona, 384 U.S. 436, 467-68 (1966); see also Dickerson v. United States, 530 U.S. 428 (2000) (reaffirming Miranda).
178. See supra notes 80-82, 117-118, and accompanying text.
179. See supra notes 119-122 and accompanying text (discussing the circumstances in which statutory precedents have been overruled in light of subsequent constitutional developments).
180. See supra note 12.
181. See supra text accompanying note 101 (discussing how the Order fuses the jurisdictional question of unlawful belligerency with the underlying substantive offense).
182. Such failure seems particularly likely because the Military Order includes not only members of such organizations, but also all those who assist them (perhaps even unwittingly).
183. The Classified Information Procedures Act (CIPA), to name the primary piece of relevant legislation, applies only to criminal trials. For example, the "notice by defendant" provision of CIPA covers "the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant" -notably excluding postconviction proceedings. 18 U.S.C. app. § 5(a) (1994) (emphasis added); see also id. § 3 ("Upon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case in a district court of the United States." (emphasis added)); id. § 2 ("At any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution." (emphasis added)).
184. See 8 U.S.C. § 1534(e)(3)(A) (Supp. V 1999); see also TERRORISM PREVENTION ACT, H.R. CONF. REP. No. 104-518, at 116 (1996) (emphasizing the need to protect classified sources in deportation proceedings).
185. Johnson v. Eisentrager could be read to indicate that at least some individuals abroad do not have any right to habeas: We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.
186. U.S. 763, 768 (1950). Of course, if Johnson precludes habeas actions for all those detained overseas, then the overall threat posed to civil liberties is that much greater. But the Johnson decision probably does not extend quite so far. The opinion is unclear about which of two rationales justified its holding that no habeas review was permissible: (1) that the petitioners were enemies in a declared war, or (2) that they were imprisoned outside the United States on the basis of conduct committed outside the United States. The Court mentioned both factors and did not get into the tricky business of which was doing the work. E.g., id. at 777-78 (mentioning both factors repeatedly). Obviously, the Court was deeply influenced by the language and structure of the 1798 Alien Enemy Act, which stripped alien enemies of nearly all judicial review; that Act is not applicable on the facts here. In favor of the narrower interpretation, the majority in Johnson conceded that those claiming citizenship were entitled to a writ of habeas corpus to "assure fair hearing of [their] claims to citizenship." Id. at 769. If person A is entitled to habeas to decide whether she is a citizen (because being a citizen is presumably so jurisdictionally important), why shouldn't person B get a habeas hearing to decide whether she is an enemy belligerent (since that status is of obvious jurisdictional importance, too)?
187. 28 U.S.C. § 2241(a) (1994) (emphasis added).
188. Compare Ahrens v. Clark, 335 U.S. 188 (1948) (holding that the District Court for the District of Columbia cannot issue the writ for those detained on Ellis Island because Ellis Island is outside of the court's jurisdiction), with Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495-98 (1973) (breaking away from earlier precedent such as that established by Ahrens). In Burns v. Wilson, 346 U.S. 137 (1953), the Court permitted the district court in Washington, D.C., to hear a habeas petition filed by United States citizens found guilty of rape and murder in Guam, a territory under supervision of the United States Navy.
189. CONG. GLOBE, 39th Cong., 2d Sess. 730 (1867) (statement of Sen. Johnson) (stating that the phrase was necessary to avoid letting "[a]ny man who may be imprisoned in any part of the United States" seek a "writ issued by a district judge of the United States farthest from the place of imprisonment"). In addition, the precursor statute also rejected an early proposal to exempt those in military custody from access to writs of habeas corpus. See Charles Fairman, Some New Problems of the Constitution Following the Flag, 1 STAN. L. REV. 587, 635-37 (1949) (describing the history).
190. Ex parte Hayes, 414 U.S. 1327, 1327 (Douglas, Circuit Justice 1973) (permitting a United States Army private to file a habeas corpus petition in District Court for the District of Columbia, despite the fact that the "applicant and his commanding officer [were] located in Germany, outside the territorial jurisdiction of any district court"); Kinnell v. Warner, 356 F. Supp. 779 (D. Haw. 1973) (applying Hayes to permit a United States Navy officer in the South China Sea to file a habeas petition in the District Court for the District of Hawaii).
191. INS v. St. Cyr, 121 S. Ct. 2271, 2278 (2001).
192. While Marbury v. Madison famously limited the Court's original jurisdiction to the few categories enumerated in Article III, Section 2, the Court shortly thereafter decided Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), holding that a writ of habeas corpus was to be treated as an instance of the Court's appellate jurisdiction in that it sought correction of the decision of a circuit court. But Bollman and its progeny have not been read to confer jurisdiction on the Supreme Court to hear habeas petitions challenging the decisions of military tribunals when the petitions have not first been ruled upon by an inferior court. See infra note 182.
193. SUP. CT. R. 20.4(a). In earlier times, the Court believed that "it is not only within the authority of the Supreme Court, but it is its duty to inquire into the cause of commitment. . . , and if found to be as charged, a matter of which such a court had no jurisdiction, to discharge a prisoner from confinement." Ex parte Yarbrough, 110 U.S. 651, 653 (1884).
194. See Everett v. Truman, 334 U.S. 824 (1948) (denying leave to file a motion seeking an original writ for relief from sentences imposed by the Military Government Court at Dachau on the basis of an evenly divided Court); Milch v. United States, 332 U.S. 789 (1947) (denying leave to file a motion seeking an original writ by an evenly divided Court); Ex parte Betz, 329 U.S. 672, 672 (1946) (denying leave to file "for want of original jurisdiction" over the dissent of Justice Murphy and the view of Justices Black and Rutledge that the Court should deny leave to file without prejudice to the filing of the petitions "in the appropriate District Court"). These cases were apparently decided on the view that it takes five votes to grant such leave, not four as it does for certiorari. In In re Yamashita, by contrast, both an appeal from the Philippine Supreme Court and an original writ of habeas corpus were filed, and the United States Supreme Court did not clearly indicate which petition provided its jurisdiction. See 327 U.S. 1, 5-7 (1946); see also In re Yamashita, 326 U.S. 693 (1945) (deferring consideration on the original petition until the petition for certiorari was received). In Hirota v. MacArthur, 338 U.S. 197 (1948), the Court denied several Japanese nationals, including former Premier Hirota, leave to file a petition for an original writ, but it did so on the ground that the convicting body was "not a tribunal of the United States," but rather one "of the Allied Powers." Id. at 197.
195. 334 U.S. 824.
196. Press Release, National Military Establishment (Jan. 6, 1949), quoted in Fairman, supra note 177, at 598 n.37. This report was written by three military officers who went to Germany to investigate, presided over by Colonel Gordon Simpson, then a justice of the Supreme Court of Texas. See Fairman, supra note 177, at 597-98 (discussing the Everett case).
197. Everett, 334 U.S. 824.
198. See Lincoln, supra note 56, at 308-10 (stating that certain measures, such as the blockade of the South and the increased size of the militia, "whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting then, as now, that Congress would readily ratify them" and that it was "believed that nothing has been done beyond the constitutional competency of Congress" and that the suspension of habeas "is submitted entirely to the better judgment of Congress"); MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE 95 (1977) (stating that President Truman's message "seemed designed to show respect for Congress' prerogative to pass legislation"). Acceding to Lincoln's request, the 1861 Congress passed a statute stating that it "hereby approve[d] and in all respects legalize[d] and ma[d]e valid" the previous unilateral acts done by the President "as if they had been issued and done under the previous express authority and direction of the Congress of the United States." Act of Aug. 6, 1861, ch. 63, 12 Stat. 326, 326.
199. In re Yamashita, 327 U.S. at 81 (Rutledge, J., dissenting) (quoting Thomas Paine, Dissertation on First Principles of Government (July 1795), in 2 THE COMPLETE WRITINGS OF THOMAS PAINE 570, 588 (Philip S. Foner ed., 1945)). Justice Murphy stated: At a time like this when emotions are understandably high it is difficult to adopt a dispassionate attitude toward a case of this nature. Yet now is precisely the time when that attitude is most essential. While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others. We live under the Constitution, which is the embodiment of all the high hopes and aspirations of the new world. And it is applicable in both war and peace. We must act accordingly. Indeed, an uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit. Id. at 40-41 (Murphy, J., dissenting).