Seeking a slender reed of support for his assault on misguided "liberal" law professors, Fletcher focuses on the notion of "unlawful combatants" --persons who, we evidently agree, may be subject to the jurisdiction of military tribunals. We differ to the extent that he treats this category as a historicalanachronism, limited to persons such as the German soldiers who sneaked into the United States in Quirin to "lurk as spies." Can he seriously think theSupreme Court would hold that the Constitution provides greater protection to terrorists who don't merely "lurk" but slaughter civilian populations, usingstealth to avoid being shot as enemy combatants perpetrating military aggression? The Quirin Court certainly wouldn't; it expressly equated "the spy who. . . [infiltrates] without uniform" with the "enemy combatant who without uniform" sneaks in to "wag[e] war by destruction of life or property." In anyevent, Fletcher's claim that such terrorists are entitled to trial by court martial or by an international tribunal hardly squares with his insistence on "theright to a jury trial," which neither of these alternatives satisfies.Curiously, Professor Fletcher glosses over what seems to me the principal obstacle to analogizing those responsible for September 11 with the Quirinsaboteurs: Those Nazi intruders were deemed unlawful combatants because they infiltrated our shores, as the Court stressed, "[a]fter the declaration of war" with Germany. But my doubts about extending Quirin to September 11, and indeed about Quirin itself, have no bearing on the constitutionality of trying al-Qaeda members by military tribunal in Afghanistan for war crimes launched or committed there after we went to war.Professor Fletcher may be right that someone is "shooting from the hip" here, but it's not me.Laurence TribeHarvard Law SchoolCambridge, MA
George P. Fletcher Responds:
Sunstein is still confused about the meaning of the phrase "laws of war" and therefore misunderstands the 1942 Quirin case on which he grounds hisargument. The eight spies were not sentenced to death because they violated the law of war by entering our territory with hostile intent. Rather theywere convicted, under a preexisting federal statute, for spying near a military facility in wartime. But spying is not, and has never been, a violation of thelaws of war. The 1907 Hague Con-vention addresses spying, but only to protect suspected spies against summary executions. The relevance of treatingthe suspects as "unlawful combatants" -- a phrase apparently first used by the Supreme Court in 1942 -- is that their unlawfully wearing civilian clothesdeprived them of combatant status and immunity to criminal prosecution.There is no basis whatsoever for the inference that President Bush "has the legal authority to use military commissions" for any purpose other thantrying suspected spies. No court has ever taken Quirin to be anything but a limited exception to the Milligan principle requiring the use of civilian courtswhen they are functioning and have jurisdiction. Yamashita does not represent a challenge to this venerable principle because the war crime alleged wasnot then a crime against the United States.Tribe is confused not only about the laws of war but about the powers of Congress. He reasons that because the slaughter of civilians is worse thanspying, the former category of war criminals are even more worthy of trial by military tribunals. A scholar faithful to the Constitution would argue theopposite: Because the crimes are so serious and our passions are likely to run high, the suspects warrant maximum protection under the SixthAmendment.Tribe's views on the powers of Congress are equally topsy-turvy. If Article III and the Sixth Amendment require certain procedures for all criminalcases, Congress cannot ameliorate the president's violating these restrictions simply by making the military tribunals more attractive than they mightotherwise be.With critics like Sunstein and Tribe, the president hardly needs supporters.From the February 25, 2002 issue:
The following is part two of an exchange among professors Cass Sunstein, Laurence Tribe, and George P. Fletcher in response to Fletcher's article"War and the Constitution," [TAP, January 1–14, 2002]. Part one appeared in the February 11 issue of TAP.
Cass Sunstein Responds:
Disputes about legal technicalities don't make for fun reading; but under the Supreme Court's decision in Ex parte Quirin, President George W. Bushdoes have the authority to use military commissions to try suspected terrorists. In arguing the contrary, Fletcher suggests that the Quirin Court allowedthe defendants to be convicted for spying, not for violations of the laws of war. This is wrong. The Court refused to assess the spying charges and ruledonly on the charges involving violations of the laws of war. Fletcher writes that with "critics like Sunstein and Tribe, the president hardly needssupporters." But it makes no sense to be an all-purpose critic of this (or any other) president. When the president acts within his legal authority, lawprofessors should say so.
Laurence Tribe Responds:
Fletcher and I may disagree about important constitutional issues, but his continued insistence on swatting at straw men -- now self-righteously declaringthat I am "confused," that my views are "topsy-turvy," and that I am not "faithful to the Constitution" -- disserves everyone involved. Suffice it to say,Fletcher has declined to defend his original false claim that I had endorsed the president's military tribunal order (which I had in fact denounced asunconstitutional in Senate testimony), and I don't see any reason to cheapen further what could have been a valuable exchange of ideas by respondingwith labels rather than analysis.
The Military Tribunal Debate: | The American Prospecthttp://www.prospect.org/cs/articles?article=the_military_tribunal_debate2 of 31/15/2010 12:52 PM