Argument: Tribunals for terrorists is consistent with US Constitution

Issue Report: Trying 9/11 terror suspects in NYC courts


Tribunals for terrorists is consistent with US Constitution: John C. Eastman. “Military tribunals are perfectly constitutional.” Ashbrook Center. November 2001: “The Fifth Amendment requires indictment by a grand jury, but specifically excepted from that requirement are “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” In other words, the men and women serving in our own military forces are not entitled to the benefits of trial in civilian courts, nor are civilians serving in the militia when they have been called into service. It would be odd indeed to read the Fifth Amendment as affording greater access to civilian courts to non-uniformed soldiers of terrorism waging war on the United States than it provides to our own soldiers and civilians.”

The Sixth Amendment provides that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” But it was long ago settled that the Sixth Amendment right to a trial by a petit jury is limited to the same group of people entitled to the benefit of grand jury indictment specified in the Fifth Amendment.

The Constitution assigns to Congress the power to define and punish offenses against the law of nations, of course, and some have argued that the President’s order intrudes upon that power. The President has his own constitutional source of power, though; he is, after all, the Commander-in-Chief, which directly bestows upon him powers in times of military crisis that are not derivative of any power delegated from Congress. Moreover, in Article 106 of the Uniform Code of Military Justice, Congress has itself authorized the President to try anyone acting as a spy by a general court-martial or by a military commission, and in Article 104 has authorized trial by court-martial or military commission of “Any person who aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly.” Similar provisions were relied upon by the Supreme Court in the 1942 case of Ex Parte Quirin, when it upheld President Roosevelt’s decision to try by military tribunal rather than civilian court German saboteurs who had come ashore from a German submarine plying the waters off our coast. One of the men tried had been a naturalized United States citizen since childhood, yet that did not alter the fact that he was giving aid to the enemy of the United States and was thus subject to trial by military tribunal.”