The Case for Judicial Review

The Washington Post

Walter Dellinger and Christopher H. Schroeder

December 06, 2001

In spite of understandable concerns of civil libertarians, military commissions clearly have a constitutional role in trying those accused of acts of war against the United States. It is possible, however, to mitigate the threat to the rule of law posed by the use of military courts.

At least three significant changes should be made by the president -- or by Congress -- in the president's recent military order establishing plans for military trials. First, such trials should be possible only for a narrow set of cases; second, procedures should be designed to determine fairly whether the persons accused are in fact guilty terrorists; third -- and most important -- some form of judicial review must be provided. The president's power as commander in chief is extensive. Lincoln, in a breathtaking exercise of military power, unilaterally freed all the slaves in states in rebellion. Military trials commissioned by the president have occurred since the beginning of the republic. In time of war, they represent an effective means of dealing with hostile combatants -- especially those captured on foreign soil -- free of evidentiary rules designed to serve the social goals of ordinary times. Military commissions can function partially or entirely in secret, avoiding disclosure of information that would compromise intelligence sources or reveal vulnerabilities in our defenses. And they can be expeditious.

The threat to civil liberties in their use is always present, but it can be reduced by careful changes in the president's plan. Congress has clear authority to make such alterations. As Justice Robert Jackson once noted, the president is at the apogee of his power when acting pursuant to congressional authorization, and at his least powerful when he claims authority to act in contravention of the will of Congress. In this instance the president did initially act with congressional authorization: The provisions of the Uniform Code of Military Justice cited by the order are the same ones that authorized creation of military commissions in the Nazi sabotage case. It remains open to Congress to revise those provisions in ways that limit and refine the president's plan.

The jurisdiction of such secret military tribunals should be clearly and narrowly circumscribed. One reason such tribunals have been accommodated within our constitutional system is that their legitimate use is limited to extraordinary cases. The current order fails to observe those limits. It extends, for instance, to any individuals who harbored a member of the al Qaeda organization, even if the persons they harbored have not been involved in any violation of the laws of war. The order exempts U.S. citizens from its coverage, but the Supreme Court has made it plain that the full range of constitutional protections afforded citizens applies also to resident aliens, and a strong argument can be made that the safeguards of a trial in criminal court normally extend to anyone in this country lawfully.

Except for members of al Qaeda actively planning or participating in a terrorist assault, military commissions ought to have no application within the United States itself so long as the regular criminal courts continue functioning. More careful limits on the scope of such procedures must be adopted and enforced by some independent party outside the executive branch.

Congress should also address the disturbing notion that procedures for determining guilt or innocence can be truncated because terrorists attacking the United States deserve no better. That sentiment may well be true: The problem is that we can't know in advance whether the person brought before the tribunal is indeed such a person. In addition, the order itself calls for full and fair trials but leaves the procedures for ensuring that these occur entirely up to the Department of Defense. That is why Congress should carefully review the procedures to be used in these trials.

By far the most important change needed in the president's military order is to reverse its sweeping and unjustified ban on any judicial review of the military proceedings. As it stands, the only review provided for is by either the secretary of defense or the president.

Even if the president were validly exercising his power to suspend the privilege of habeas corpus, it cannot be constitutional to exclude the courts altogether. The attempt to do so might in fact come back to haunt the government, because any federal judge might assert the inherent constitutional power of the courts.

The president and Congress would be well advised to provide for judicial review by a single designated federal appeals court, a special panel of judges established for the purpose or by the Supreme Court itself. Secret evidence alleged to be material to a conviction could be reviewed in camera by the judges or the justices.

Independent review outside the executive branch is essential if the nation is to be assured that such military commissions are fairly designed to ascertain guilt and are limited to the extraordinary circumstances that alone can justify their use.

Walter Dellinger, a Washington lawyer, and Christopher H. Schroeder are law professors at Duke University and former Justice Department officials.

Copyright 2001 The Washington Post