In the uproar caused by Atty. Gen. Eric H. Holder Jr.'s announcement that the alleged planners of the 9/11 attacks are to be tried in U.S. District Court in New York City, and the suspects in the attack on the U.S. destroyer Cole will go on trial before military tribunals at Guantanamo Bay, Cuba, the public discourse has lost sight of the fundamental principles that guide the government when it makes such decisions. Unfortunately, the government has lost sight of the principles as well.
When President George W. Bush spoke to Congress shortly after 9/11, he did not ask for a declaration of war. Instead, Republican leaders offered and Congress enacted an Authorization for the Use of Military Force. The authorization was open-ended as to its targets and its conclusion, and basically told the president and his successors that they could pursue whomever they wanted, wherever their pursuits took them, so long as they believed that the people they pursued had engaged in acts of terrorism against the United States. Thus was born the "war" on terror.
Tellingly, and perhaps because we did not know at the time precisely who had planned the 9/11 attacks, Congress did not declare war. But the use of the word "war" persisted nonetheless. Even after he learned what countries had sponsored terrorism against us and our allies with governmental assistance, Bush did not seek a declaration of war against them. Since 9/11, American agents have captured and seized nearly 800 people from all over the globe in connection with the attacks, and now five have been charged with planning them.
Virtually all of those seized who survived interrogation have been held at Guantanamo Bay. Bush initially ordered that no law or treaty applied to these detainees and that no judge could hear their cases, and thus he could detain whoever he decided was too risky to release and whoever he was satisfied had participated in terrorist attacks against the U.S. He made these extra-constitutional claims based, he said, on the inherent powers of the commander in chief in wartime. But in the Supreme Court, he lost all five substantive challenges to his authority brought by detainees. As a result, some detainees had to be freed, and he and Congress eventually settled for trying some before military tribunals under the Uniform Code of Military Justice and subsequent legislation.
The casual use of the word "war" has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war -- and thus trigger the panoply of the government's military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.
The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II. They came ashore in Amagansett, N.Y., and Ponte Vedra Beach, Fla., and donned civilian clothes, with plans to blow up strategic U.S. targets. They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.
In Ex Parte Quirin, the Supreme Court case that eventually upheld the military trial of these Germans -- after they had been tried and after six of the eight defendants had been executed -- the court declared that a formal declaration of war is the legal prerequisite to the government's use of the tools of war. The federal government adhered to this principle of law from World War II until Bush's understanding of the Constitution animated government policy.
The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.