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Military Tribunals Undermine
the Constitution
By Laurence Tribe
[The following is a transcript of professor Tribe's testimony before the 
Senate Judiciary Committee on December 6, 2001.]
I am honored by the Committee's request that I testify at this very 
important hearing on the role Congress can and should play in our shared 
national effort to defeat global terrorism without inadvertently succumbing 
to our own reign of terror.
Although many of our constitutional freedoms would be rendered meaningless 
without freedom from terrorist attack, they may be equally threatened by 
undue governmental limitations and intrusions imposed in the elusive 
pursuit of national security. The choice we face is not that of liberty 
versus security. Our challenge is to secure the liberties of all against 
the threats emanating from all sources--the tyranny and terror of 
oppressive government no less than the tyranny of terrorism.
In the days following September 11, our journalists, academics, and 
citizens wondered whether our government and our courts would have the 
wisdom and courage to avoid the terrible mistake they made in ordering and 
ratifying the detention of over 70,000 Japanese Americans in internment 
camps during the Second World War. Liberty from overreaching governmental 
power was central to the freedoms identified by President Bush in his 
address to Congress on September 20 as the very target of the terrorist attack.
I share with the President the belief that civil liberty includes liberty 
from terrorism. I hope we share the belief that the war against terrorism 
does not require us to sacrifice constitutional principles on the altar of 
public safety, We know what is the result of that sacrifice--in Korematsu 
v. United States, 323 U.S. 214 (1944), the Supreme Court permitted the 
government to intern American citizens purely on the basis of their 
ancestry in the name of national security. But liberty, properly 
understood, requires both protection from government and protection by 
government.
We must not permit ourselves to repeat the same mistake and, by pitting 
liberty against security, erase our freedom and equality in security's 
name. We are at the "Korematsu" crossroads. Congress can determine which 
path we take. And Congress has a special responsibility to act. No other 
branch of government can be relied on to perform that task as well. 
Congress alone can see the problem whole; courts necessarily see but one 
case at a time and in wartime tend to defer to the executive's greater 
knowledge and expertise, and the executive tends to be blinded by the 
single-minded requirements of the military mission.
The real problem is not how much liberty to sacrifice to buy security; it 
is how properly to achieve freedom from the terrorism of all fanatics, 
foreign or domestic, who would challenge the living fabric of our society, 
including the constitutional compact that unites and gives it purpose. 
Fanatics have attacked the Pentagon and the Federal Building in Oklahoma 
and have toppled the towers of the World Trade Center, massacring thousands 
of innocent people. We must not allow them to tear down as well the 
structure of government, constituted by the separation of powers, that 
makes our legal and political system--and the liberties it embodies and 
protects--altogether unique. Our response to each threat must remain the 
same: a steadfast refusal to succumb to any attempt to force upon us a 
will, and a way of life, that offend the freedoms at our country's core. 
These freedoms, embodied in our Constitution, are our security against the 
fanatics' new tyranny of terror. To assert them here is to win at home the 
war we are waging so effectively abroad.
In the wake of the terrorist attack on the United States, the President has 
acted to ensure that the perpetrators of this crime against humanity are 
brought to justice--or, as he promised in his address to Congress, to bring 
justice to the terrorists. The terms of the November 13 Military Order 
represent the most dramatic Presidential step thus far in our effort to 
elaborate just what the content of this American justice is to be. The 
ostensible goal of the military tribunals to be instituted pursuant to that 
Order is to permit a "full and fair trial," sec4(c)(2), while at the same 
time ensuring that the process is as expeditious and secure as possible. 
The need to provide sooner rather than later for the detention and trial of 
those responsible for the terrorist attacks of September 11 is apparent 
from the rapid pace of our, and our allies', military victories in 
Afghanistan. To Congress falls the task of charting our next steps by 
giving content to a vision of justice that responds fairly yet firmly to 
the fanatics' threat to our nation.
Congress alone can avoid the constitutional infirmities that plague the 
Military Tribunal Order of November 13 and must do so not only to protect 
the constitutional rights of those threatened by that Order but also to 
shield any resulting convictions from judicial reversal on appeal 
--convictions which could properly be obtained by military tribunals 
constituted under a more narrowly drawn congressional statute.
As of two days ago, Secretary of Defense Rumsfeld had wisely sought to 
describe the Military Order issued by President Bush on November 13 as a 
blueprint made public, "so that... work could begin" designing the military 
tribunals and settling their jurisdiction and procedures. He insisted that 
the Order was announced simply because, in his words, "It may be that we 
will need that option" (NBC,"Meet the Press," Dec.2, 2001). This is not, 
however, a blueprint that the United States Government is free to follow. 
The structure of executive power instituted by the November 13 Order is so 
constitutionally flawed at its base that it cannot be saved by nimble TV 
spin or by altering a detail here and a detail there.
As promulgated, the Military Order, by its express terms, is a direct 
threat to some 20 million lawful resident aliens in the United States. 
Almost any act by a resident alien, anywhere, could in some circumstances 
lead the President to believe the alien has or had some form of involvement 
with a terrorist organization. The resident alien need not even know that 
he was involved with terrorists. All that is required is "aid[ing] or 
abet[ing]" terrorists "or acts in preparation [ ]for" terrorism. Hiring a 
car for a friend could be a terrorist act subject to trial by military 
tribunal, if it turned out that your friend is--or was--a terrorist. How 
many contributors to the African National Congress who supported sanctions 
against South Africa under apartheid in the face of government opposition 
"ha[d] as their aim to cause[ ] injury or adverse effects on . . . United 
States . .. foreign policy... " sec2(a)(1)(ii).
How many supporters of Irish nationalism contributed, for reasons of 
political conscience, funds that "aided or abetted" the Irish Republican 
Army before it began disarming on September 11? The Military Order decrees 
that any such supporter might at any moment be turned over to the Defense 
Department for trial by a military tribunal on the mere stroke of the 
President's pen certifying that the President had "reason to believe" that 
the named individual was, or at one time had been, helping or harboring 
some organization that the President saw fit to regard as an example of 
"international terrorism."
Of course, as Secretary Rumsfeld must have recognized, any such threat, 
made in a manner that necessarily hangs like a Sword of Damocles over 
millions of lawful residents of this nation, cannot possibly be defended 
under our Constitution. As Justice Marshall once wisely observed, such a 
sword does its work by the mere fact that it "hangs--not that it drops." 
Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting). The 
Secretary's attempt to wish the sword away--to persuade us all that, until 
we feel the edge of its blade upon our necks, we need not worry--is no 
substitute for replacing that sword with a solid framework for the 
judicious use of executive force in bringing justice to the terrorists.
The next steps are for Congress to take--not in the direction of so flawed 
a blueprint, but towards a constitutionally sound regime that will 
withstand judicial review--if it hopes to obtain swiftly and to defend from 
embarrassing judicial invalidation, convictions by military tribunal of the 
leaders of Al Qaeda, or indeed of anyone else. For it is not within our 
government's power simply to threaten to detain and commit to a military 
tribunal or commission anyone who associates with agents of terror. After 
all, even today's hardly "liberal" Supreme Court not long ago held that the 
City of Chicago's response to terror gangs--enacting legislation that 
threatened to arrest and prosecute anyone who, loitering near a known gang 
member, did not disperse upon police command--was flatly unconstitutional 
in essentially delegating to those who enforce the law the vaguely bounded 
power to make it on the spot. City of Chicago v. Morales, 527 U.S. 41, 
62-63 (1999).
The November 13 Military Tribunal Order is the same sort of response and 
has the same kind of infirmity. Like terrorism itself even though far less 
violently, a threat of arrest and possible conviction, even in our fully 
protective civil courts, for offenses not clearly defined in advance but to 
be defined by the executive as events unfold, instills fear far beyond the 
ground zero of its actual implementation. The Supreme Court in Morales 
recognized as much by striking down on its face the ordinance that 
announced that threat and refusing to wait until particular individuals 
were convicted or even charged. Id. at 55.
The judicial response to the November 13 Order, despite Bush administration 
efforts to describe it as more like a mere press release, than a real 
order, could be even harsher. For at least the Chicago threat carried with 
it the assurance that nobody would be arrested pursuant to its terms 
without first receiving a clear and individualized warning--and that anyone 
could assuredly avoid arrest and prosecution simply by heeding that warning 
and dispersing when ordered to do so.
The November 13 Order is a threat that carries no such corresponding 
assurance: all those subject to it are exposed to prosecution, conviction, 
and possible execution for conduct they may have engaged in years ago--and 
the Order suffers from the compounding vice that it violates the separation 
of powers required by our Constitution of the federal government (although 
not of states and municipalities) by proceeding without the congressional 
authorization clearly required for any creation of a system of trials, 
military or otherwise. It installs the executive branch as lawgiver as well 
as law enforcer and law interpreter and applier, leaving to the executive 
branch the specification, by rules promulgated as it goes along, of what 
might constitute "terrorism" or a "terrorist" group, what would amount to 
"aiding and abetting" or "harboring" such terrorism or such a group, and a 
host of other specifics left to the imagination of the fearful observer. 
This "blending of executive, legislative, and judicial powers in one person 
or even in one branch of the Government is ordinarily regarded as the very 
acme of absolutism." Reid v. Covert, 354 U.S. 2, 11 (1957); Federalist No. 
47 (James Madison).
Several days before Secretary Rumsfeld's attempted recasting of the 
November 13 Order, White House Counsel Alberto Gonzales opined in the pages 
of The New York Times that the order would not reach any but "foreign enemy 
war criminals," Alberto R. Gonzales, "Martial Justice, Full and Fair," The 
New York Times, Nov. 30, 2001, sec A at 27, and that each military 
tribunal's proceedings, which the Order had said could be conducted in 
secret at the President's option, sec4(c)(4), would of course be conducted 
in the open with exceptions only for "the urgent needs of national security."
It is, to be sure, nice to have White House Counsel's promise that this is 
so, but "trust me" has never been enough for the American people. Our whole 
constitutional tradition is predicated on the proposition that not even the 
best intentions of the most benevolent leaders can substitute for the 
positive legal protection and preservation of freedom. Ours is "a 
government of laws, not men." It is offensive to our founding values to 
have the powers of drafting the laws, and then prosecuting and adjudicating 
violations of those laws, embodied in one agency--here, one man. "Such 
blending of functions in one branch of the Government is the objectionable 
thing which the draftsmen of the Constitution endeavored to prevent by 
providing for the separation of governmental powers." Reid v. Covert, 354 
U.S. 2, 38-39 (1957).
It is just not good enough for the executive branch to put a benign spin on 
this Order and to assure the nation that it will not mean in practice what 
it says on its face. Yet this is precisely what Mr. Gonzales sought to do 
when he "explained" in The New York Times that the Military Order's 
explicit bar of any judicial relief whatsoever for any person detained and 
tried pursuant to it would, of course, not mean what it said, inasmuch as 
the Supreme Court half a century ago had refused to take identical language 
at face value in its Ex parte Quirin decision condemning the Nazi submarine 
saboteurs to death--but only after according them a judicial hearing of sorts.
What seems essential is less spin and more action--here, concrete 
legislative action to build a sound but narrow legal platform on which to 
construct the military tribunals and conduct the military trials that the 
President believes may prove essential in extraordinary cases where our 
civil justice system may be insufficient to the task of coping with the 
terrorist threat that became manifest with the monstrous events of 
September 11. That legal platform must make clear that its scope cannot be 
extended (a) to American citizens; (b) to individuals linked, however 
closely, to acts of terror wholly unrelated to September 11 (unless 
Congress affirmatively and expressly chooses to add such acts, or the 
specific organizations responsible for them, to the list of targets it 
empowers the President to pursue and try militarily); to individuals not 
closely linked to a specific terrorist event whose responsible agents 
Congress has authorized the President to pursue by force and try by 
military tribunal; or to mere foot soldiers captured on the field of battle 
and entitled, under the Geneva Convention, to treatment as prisoners of war 
rather than as war criminals.
Substantive limits must be established by law to constrain on the 
President's power to determine which aliens are to be subjected to the 
jurisdiction of a military tribunal or commission, and procedural 
guidelines must be established to ensure that defendants' due process 
rights are protected by such commissions. Congress must set those limits 
and draft those guidelines, presumably in consultation with the President.
At the forefront of our new agenda abroad, at least so far, has been an 
effort to help establish transparent, accountable, and hopefully democratic 
institutions with which to govern Afghanistan. The policy appears to rest 
upon the belief that democracy is the best check on terrorist activity, 
which requires a culture of respressive intolerance in order to thrive. Yet 
that same accountability must prevail at home as well. We are in the end 
more, not less, secure when we practice the democracy at home that we 
preach abroad.
The Military Order confronts Congress with two distinct problems to 
resolve. The first is the set of substantive limitations to be placed on 
the jurisdiction afforded military tribunals: who is to be subject to the 
tribunals, and for what wrongs? The second is the set of procedures that is 
to govern these tribunals. We must ensure the open and fair hearings 
witnessed in "A Few Good Men," not the kangaroo court seen in "Paths of 
Glory." It is especially troubling that even our extant system of courts 
martial has been besmirched by careless comparison with the far less 
protective military tribunals that the order plainly contemplated. See 
William Glaberson, "A Nation Challenged: the Law; Tribunal v. 
Court-Martial: Matter of Perception," The New York Times, Dec. 2, 2001, 
sec1B at 6 ("the proposed tribunals are significantly different from 
courts-martial, [military] lawyers say, adding that confusion between the 
two has distorted the debate over the tribunals and unfairly denigrated 
military justice").
Jurisdiction
1. As a preliminary matter, Congress should note that we already have a 
system of justice under which to try terrorists: we successfully tried in 
criminal court the last members of Al Qaeda who attempted to bomb the World 
Trade Center. In the rush to convict and punish the perpetrators of the 
attacks on the World Trade Center and the Pentagon, it would be a mistake, 
although not necessarily a violation of the Constitution, to rely on 
military courts as a substitute for the intelligence agencies' ability to 
track terrorists and accumulate convincing evidence of their activities. 
Using a court designed to convict even when a weak case has been presented 
by the government--using it, in fact, to cover the failures of the 
executive--is hardly the way to fight terrorism in the long run.
Indeed, the entire plea for secrecy and anonymity--from concealing from the 
accused and/or the public the identity and nature of the witnesses and 
other sources behind the government's case, to keeping confidential the 
methods of investigation employed by the government to track down and 
identify the accused, to hiding the identity of jurors and judges who might 
reasonably fear reprisal from an accused terrorist's associates in terror 
who are still at large--can so easily become a cover, whether deliberate or 
not, for ineptly unreliable or otherwise unconscionable behavior by the 
executive, that it would seem wise for Congress to institute some sort of 
independent check on the President's assertion that the presumptively open 
and public civil trial system, which has had to cope often with needs for 
witness protection and informer anonymity and the like, is intrinsically 
ill-adapted to the task at hand.
Congress's goal should therefore be to channel as many suspected terrorists 
as feasible away from, rather than towards, military tribunals. Among the 
reasons justifying a military tribunal will of course be considerations of 
national security that may require closed proceedings to protect classified 
information from dissemination; concerns of overwhelming danger to the 
court, to jurors, or to witnesses that might require secure proceedings of 
a sort precluded even by the usual methods of witness or court protection; 
or circumstances surrounding the accused's capture while prosecuting a 
military action on behalf of an enemy nation or group in a manner that 
allegedly violates the laws of war.
2. Although much of the current debate proceeds on the premise that these 
two should be treated differently, where these reasons are present there 
seems little principled basis to distinguish between an unlawful 
belligerent who is a resident alien, blending in with and hiding among the 
United States population, and one who is a non-resident alien, openly 
engaging in warfare on United States civilians from beyond our borders. 
Indeed, the reasons for favoring military tribunals do not appear to 
distinguish between citizens and non-citizens. As the Court held in Ex 
parte Quirin, 317 U.S. 1 (1942), when a citizen disavows his homeland and 
sides with the enemy, he may become an enemy belligerent. See id., 317 U.S. 
at 16 ("Citizenship in the United States of an enemy belligerent does not 
relieve him from the consequences of a belligerency which is unlawful 
because in violation of the law of war"). Indeed, being a traitor as well 
as an unlawful belligerent, the citizen who wages such warfare on his 
homeland may well be regarded as more culpable than the alien, not less.
In sum, it seems wisest in practice to limit military tribunals--as the 
Bush Administration has all but promised it would likely do in practice--to 
a relatively small group of enemy alien leaders, captured abroad, of 
terrorist groups clearly identified by Congress, and an even smaller group 
of their colleagues who are reasonably believed to have played similar 
roles while concealed among our people. In theory, however, the two 
criteria essential to establishing military, as opposed to civilian, 
jurisdiction should not rest upon any such difference in status.
The first is that the person to be tried by a military tribunal or 
commission must be an enemy, see Johnson v. Eisentrager, 339 U.S. 763, 776 
(1950)--that is, someone acting at the behest of a nation or other entity 
warring against the United States; the second is that the enemy must be 
charged with unlawful belligerency, or any other established offense 
against the laws of war, sufficiently serious to warrant such disfavored 
treatment. See Ex parte Quirin, 317 U.S. at 11.
Strikingly, the November 13 Military Tribunal Order extends the range of 
offenses that it subjects to military tribunals so as to include "any and 
all offenses triable by military commission," sec4(a), not just those that 
offend the laws of war, based, evidently, upon an unexplained finding that 
"prevention of terrorists attacks" requires the detention for, and trial 
by, military commissions not only "for violations of the laws of war" but 
also for "violations of . . . other applicable laws," of all "individuals 
subject to this order," sec1(e) (emphasis added). The law is settled, 
however, that an alien may be subjected to trial by a military tribunal 
only if he meets both of the criteria set forth above. See Yamashita, 327 
U.S. at 26. Even though military rule is "properly applied . . . on the 
theatre of active military operations, where war really prevails," 
Milligan, 71 U.S. at 127, trying a captured soldier as a criminal for 
merely fighting in accord with the laws of war on behalf of the nation or 
other entity he represents appears to be universally condemned.
Under the Geneva Convention and other international instruments, such 
soldiers must be held as prisoners of war, to be repatriated at the war's 
conclusion. This could pose a problem in a case such as that of Taliban 
foot-soldiers, captured while engaged in combat against the Northern 
Alliance, whom our military leaders suspect of harboring, or working in 
close concert with, Al Qaeda. Unless such combatants happen to be among Al 
Qaeda's leadership, they are most unlikely to have been sufficiently 
responsible for that group's terrorist acts to count as war criminals, but 
viewing them as entitled to treatment as prisoners of war would seem to 
require their repatriation in the eventually reconstituted Afghanistan, to 
Saudi Arabia, to Pakistan, or to their mother country whatever it might 
be--none of which nations might be willing to welcome them.
Even though the indefinite and potentially permanent detention of 
deportable aliens residing in the United States may well be 
unconstitutional even if no other nation will accept them, see Zadvydas v. 
Davis, 121 S. Ct. 2491, 2500-02 (2001), that protection does not seem to 
extend to "aliens outside our geographic borders," id. at 2500 (and cases 
cited therein), much less to enemy aliens outside those borders, so it may 
well be that, since international law could hardly require the admission of 
such captured enemies into the United States, there is no alternative to 
their indefinite detention by the United States, at a suitable place 
outside our borders, unless and until their repatriation becomes possible.
3. To enforce this basic jurisdictional boundary, Congress should provide 
for some form of tribunal--it need not be an Article III court in the first 
instance--to review the President's threshold assertion of military 
jurisdiction, and should provide as well for some suitably expedited form 
of habeas corpus review in an Article III court if the initial review was 
by some lesser power. See, e.g., H.R.3162 (Uniting and Strengthening 
America by Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism (USA PATRIOT ACT) Act of 2001) (signed into law October 26, 2001) 
sec412(b) (providing expedited habeas corpus review).
4. In addition, of course, Congress would do well, acting under its Article 
I, sec8, ch. 10 power to "define and punish... offences against the law of 
nations," to define more precisely those violations of the laws or customs 
of war which the military tribunals may hear, and to specify or otherwise 
monitor the penalties to be imposed. Punishments could perhaps be made 
proportionate to those meted out under the Federal Sentencing Guidelines.
Procedure
5. Domestic law of course imposes due process safeguards on military 
tribunals of every possible form. Thus, in Middendorf v. Henry, 425 U.S. 25 
(1976), the Court took note of the traditional categorization of courts 
martial (general, special, and summary--i.e., non-adversarial.), and 
required Fifth Amendment due process protections to be extended to a 
defendant even at the lowest (summary) of the three levels of court 
martial. Id. at 43 ("plaintiffs, who have either been convicted or are due 
to appear before a summary court-martial, may be subjected to loss of 
liberty or property, and consequently are entitled to the due process of 
law guaranteed by the Fifth Amendment"). The two higher levels (general and 
special) are adversarial, and accordingly require heightened due process 
safeguards.
6. The court martial provisions of the Uniform Code of Military Justice 
(UCMJ) provide the minimum procedural safeguards required by military law, 
and may usefully be considered by Congress as setting a template against 
which to measure possible legislative proposals for creating new types of 
military tribunal. "General courts-martial . . . have jurisdiction to try 
any person who by the law of war is subject to trial by a military tribunal 
and may adjudge any punishment permitted by the law of war." 10 U.S.C. 
sec818. General courts-martial are, as noted, comprised of five judges. One 
of these must be a military judge--unless the defendant waives this 
requirement. 10 U.S.C. sec816. At least one trained lawyer sits on the 
court, 10 U.S.C. sec826, and, absent exigencies of war, the accused is 
entitled to counsel to defend him, sec827; to know the charges proffered 
against him, sec830; to be free from compulsory self-incrimination, sec831; 
and to conduct a limited investigation of the facts surrounding the charge, 
sec832.
7. A court martial also provides heightened protection for more serious 
charges. Section 852 of the UCMJ ensures that a defendant may be convicted 
of a crime punishable by death only where the commission's vote is 
unanimous. Any death sentence must be unanimous as well. While this would 
no doubt limit the number of death sentences that could be imposed--and the 
number of convictions that could be obtained in cases where that penalty 
was sought--if the military tribunals now being established were to follow 
the court martial model, the prosecution could keep the overall conviction 
rate from falling much by seeking a life sentence, and from falling at all 
by seeking a term of years less than life, which requires the same 
two-thirds vote that the November 13 Order would require. See sec4(c)(6).
8. Suggestions that military tribunals must, either as a matter of 
constitutional necessity or as a matter of sound international diplomacy, 
follow evidentiary rules and burden-of-proof rules fully as onerous to the 
prosecution, and protective of the accused, as apply in ordinary criminal 
trials and in courts martial, have much to commend them, but Congress may 
properly keep in mind that at least some of those rules are designed mostly 
to protect lay jurors from being unduly impressed by categories of evidence 
whose reliability those inexperienced in such matters may overestimate, or 
unduly swayed by emotional appeals for vengeance, and that the need for 
such rules may be correspondingly reduced when trained professionals are 
the finders of fact and law.
In addition, the classic requirement of proof beyond a reasonable doubt is 
chosen to reflect the old adage that it is better to free 100 guilty men 
than to imprison, much less execute, one innocent--a calculus that neither 
the Constitution, nor conventional morality, necessarily imposes on 
government when the 100 guilty who are freed belong to terrorist cells that 
slaughter innocent civilians, and may well have access to chemical, 
biological, or even nuclear weapons. Due process has been held, for 
example, to permit incarceration of potentially indefinite duration of 
those found, upon proof by less than the "beyond reasonable doubt" 
standard, to pose a grave danger to the safety of others. See Addington v. 
Texas, 441 U.S. 418, 424-29 (1979) ("clear and convincing" evidence 
standard held constitutional).
To be sure, there is a very significant difference between involuntary 
civil commitment or quarantine of someone deemed dangerous to the public 
for reasons that entail no moral opprobrium and imprisonment or, most 
extreme of all, execution, of someone convicted as a war criminal. But in a 
legal universe where the option of permanent incarceration as a "probable 
once and future terrorist" is non-existent, to put decisive weight on the 
moral valence of the "war criminal" label may mean violating the maxim that 
our Constitution is not a suicide pact. For proof beyond a reasonable 
doubt--using those words in their criminal law sense and not with a 
wink--may be too much ever to expect in at least some categories of 
terrorism cases where intrinsic difficulties of gathering and presenting 
the needed evidence, particularly if the hearsay rule and other somewhat 
artificial obstacles are interposed, would predictably lead to the release 
of individuals likely to cause the avoidable loss of far more innocent life 
than would result from a somewhat softer standard of proof.
9. Congress should also ensure that an accuser not be given the final word 
as the court of last resort in the appeal of a conviction or sentence that 
the accuser obtained in his role as prosecutor or as the prosecutor's 
ultimate superior--a power currently granted the President by his Military 
Order. See sec4(c)(8) (trial record submitted for President's "review and 
final decision"). It has been an axiom of Anglo-American law for nearly 
four centuries that a "person cannot be judge in his own cause," Dr. 
Bonham's Case, 8 Co. 114a, 118a (1610), a principle applicable to appellate 
no less than trial judges. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 
821-25 (1986). The fact that no appeal at all is constitutionally mandated 
from a criminal conviction rendered by a civil court, McKane v. Durston, 
153 U.S. 684 (1894), has never been taken to imply that an "appeal" to the 
chief prosecutor himself can 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. 2, 36 (1957), as is 
true of courts martial, id., and of any other military tribunal drawn 
exclusively from the President's military subordinates.
Unless Congress opts for the novel alternative of having one or more 
members of each military tribunal drawn from the Article III judiciary--as 
Congress did in setting up the U.S. Sentencing Commission, see Mistretta v. 
United Sates, 488 U.S. 361 (1989), and in creating the panel charged with 
the task of appointing the independent counsels, see Morrison v. Olsen, 487 
U.S. 654 (1988)--it follows that Congress must probably guarantee an 
expedited appeal to some entity independent of the executive branch, such 
as the Court of Appeals for the Armed Forces. Ultimate discretionary review 
by the Supreme Court on writ of certiorari would be an optional feature in 
such an arrangement. Whatever system of appeals is provided, it seems plain 
that, if considerations of national security or witness protection so 
require, Congress could provide that any appeal to a body independent of 
the President be conducted as a closed proceeding, with the record of the 
appeal to be kept confidential.
10. Although the UCMJ provides a useful model, the power to set out 
procedures in the first instance might instead be delegated to the 
Department of Defense, provided that, within a specified time before such 
procedural regulations go into effect, they are reported to Congress. Such 
a mandatory waiting period would give Congress an opportunity to reject or 
amend the regulations by joint resolution (not, of course, by a mere 
concurrent resolution, or by a one-house resolution, both prohibited under 
INS v. Chadha, 462 U.S. 919, 952 (1983)). Indeed, if military commissions 
or tribunals outside the UCMJ framework are to be as rare an occurrence as 
the administration insists they are meant to be, Congress might simply 
decide to require such tribunals to be individually authorized by the 
President after a statutorily mandated consultation with congressional 
leadership to explain why existing institutions, including the Article III 
courts, are inherently insufficient in the circumstances. Such 
congressional oversight of the President's conduct of this war would draw 
in part, of course, on the War Powers Resolution of 1973, Pub. L. No. 
93-148, 87 Stat. 555 (codified at 50 U.S.C. secsec1541-1548 (2000)), as 
precedent--something to which the Bush administration, which invoked the 
War Powers Resolution as part of the foundation for the Use of Force 
Resolution that it proposed to, and obtained from, Congress on September 
18, 2001, should have no objection. In any event, Congress would presumably 
want to require the President or his Secretary of Defense to submit regular 
periodical reports concerning the proceedings of the military tribunal, and 
the continued need for their existence.
Oversight
11. However, Congress could also ensure continued oversight of military 
tribunals in a variety of ways--for example, by controlling the manner in 
which the presiding officers are selected. It may require that presiding 
officers have certain minimum qualifications, and may permit civilians to 
serve. Alternatively, Congress may require the Secretary of Defense to 
submit a list of eligible candidates, from which Congress would select 
presiding officers to serve for a term of years. Congress could also 
establish procedures for the removal of such officers.
12. In addition, Congress should certainly provide for the "sunsetting," or 
automatic expiration after a relatively few years (three or four would seem 
prudent), of whatever authorization it enacts for special military 
tribunals to deal with suspected terrorists, just as was done in the 
USA-PATRIOT Act, see, sec224, inasmuch as the war being waged against 
international terrorism, unlike a declared war against a sovereign nation, 
could go on indefinitely, with no plausible way of declaring it over at any 
given point.
Conclusion
13. Finally, it is worth noting that Congress occupies a privileged 
position not available to any court that may be asked to decide the 
constitutional issues arising from these tribunals. For Congress has before 
it questions concerning the prolonged and secret detention of aliens and 
the use of what appears to be a form of ethnic, or at least 
national-origin, profiling in the interrogation of immigrants; challenges 
to the conceded use of United States citizenship as a reward for providing 
information that might lead to the breakup of terrorist cells or the 
apprehension of terrorists; concerns going to possible abuses of 
prosecutorial discretion; issues regarding the alleged breach of the 
attorney-client privilege; worries triggered by Department of Justice 
indications that the FBI, now in a powerful new information-sharing 
arrangement with foreign intelligence agencies, may be on the verge of 
resuming practices, happily abandoned decades ago, involving keeping close 
tabs on, and even planting secret government informants in, political, 
religious, and civil rights-civil liberties groups; and, of course, all the 
fears and criticisms triggered by the November 13 Military Tribunal Order.
I believe Congress should seize this historic opportunity to investigate 
with care but with dispatch, and then to craft an integrated legislative 
package that protects individual freedoms while permitting, if truly 
necessary, a form of secure tribunal in which to try suspected war 
criminals who pose a particularly virulent threat. While I believe such 
tribunals may well be justifiable in extremely limited circumstances in 
which, among other things, the laws of war have been violated, we must be 
clear that facile distinctions between terrorists who kill our people with 
nefarious schemes incubated in caves located far across the seas, and those 
who do so by carefully hatching plots in the comfort of our cities, 
concealing themselves as civilians while they plan monstrous acts of mass 
murder, are worth very little in the larger scheme of things. Bin Laden, 
and the leader of the terrorist cell of aliens living in our midst after 
gaining lawful entry to this country who proceeded to turn our world upside 
down on September 11, are cut from the same cloth.
We must keep in mind, too, that the vast majority of individuals who may be 
subjected to scrutiny because of their previous affiliation with or support 
for terrorist organizations are guilty of at most run of the mill crimes, 
crimes properly punished in civilian court. We must not make martyrs out of 
petty criminals. Far better to show our foes that American justice will 
survive their assault than to sacrifice our core values through hasty 
overreaction.
This, then, is our Korematsu: the choices we face now--as then--are 
difficult ones. But I believe that Congress can rise to the occasion, 
resist the undue consolidation of power within the executive branch, and 
secure our freedom and our safety alike, requiring no more compromise of 
our liberty than is genuinely essential--and then only in ways that respect 
equality. These are the better angels of our nature to whom I bid Congress 
listen today.
Laurence Tribe is the Tyler Professor of Constitutional Law at Harvard Law 
School.