Judge Andrew Napolitano: Military Tribunals Are Unconstitutional
By David J. Theroux • Saturday February 13, 2010 6:17 PM PDT • 8 Comments
In an article in the Los Angeles Times on November 29th, “The case against military tribunals,” Judge Andrew P. Napolitano presented his opposition to military tribunals in the U.S. government’s undeclared “war on terror.”
It’s a violation of the Constitution to use the panels without a declaration of war—and just calling it a “war” on terror doesn’t count.
A devoted constitutional expert, Fox News host, and avowed, conservative disciple of Barry Goldwater and Ronald Reagan, Judge Napolitano noted that:
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.
Now in a new article by Rick Ungar, “True conservatives condemn military tribunals for terrorists,” he pursues the issue further and states:
American conservatives would do well to listen to the words of Judge Napolitano as he makes his case in support of strictly construing the Constitution. . . . Those who support the Constitution can’t have it both ways. You either respect the rule of law, even when it is inconvenient and a bit scary, or you don’t. That’s the whole point of having a Constitution. . . . Your leaders are hustling you, turning their alleged belief system inside out to score points with populist outrage – and turning the Constitution inside out in the process. These leaders are nothing more than scared little men and women caving into popular fear rather than doing their jobs.
As Judge Napolitano further noted:
The framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty or property from any person without the intercession of a civilian jury to check the government’s appetite and to compel transparency and fairness by forcing the government to prove its case to 12 ordinary citizens. Thus, the 5th Amendment to the Constitution, which requires due process, includes the essential component of a jury trial. And the 6th Amendment requires that when the government pursues any person in court, it must do so in the venue where the person is alleged to have caused harm.
Numerous Supreme Court cases have ruled that any person in conflict with the government can invoke due process—be that person a citizen or an immigrant, someone born here, legally here, illegally here or whose suspect behavior did not even occur here.
Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a “war,” there would be no limit to the government’s ability to use the tools of war to achieve its ends. We have a “war” on drugs; can drug dealers be tried before military tribunals? We have a “war” on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared “war” on Fox News. Are Glenn Beck, Bill O’Reilly and I and my other colleagues in danger of losing our constitutional rights to a government hostile to our opinions?
I trust not. And my trust is based on the oath that everyone who works in the government takes to uphold the Constitution. But I am not naive. Only unflinching public fidelity to the Constitution will preserve the freedoms of us all.
Tags: Afghanistan, Civil Liberties, Constitution, Corruption, Criminal Justice, Integrity, Iraq, Law, Liberty, Middle East, Military, Morality, Natural Law, Personal Liberty, Presidential Power, Torture, Transparency, War 
The SCOTUS disagreed with the good judge.
genomega | Feb 13, 2010 | Reply
genomega,
Yes and as with so many other decisions, the Supreme Court is wrong.
David Theroux | Feb 14, 2010 | Reply
Every officer of the state at any level is supposed to be sworn (or affirmed) to support the Constitution. This makes a personal commitment, not a general following what some lawyer or panel of lawyers says.
The problem simplified:
1 – They haven’t read the Constitution, or
2 – They’ve read but don’t understand the Constitution, or
3 – They’ve read the Constitution, they understand it, but they just don’t care.
Al | Feb 16, 2010 | Reply
This was a very good article, I hadn’t thought of this before. But my condemning the military tribunals has stemmed from this; I’ve never understood the double standard of the supposed “Conservatives.” Why is it that they do not want to afford military protection to spies (because they [spies] are not officially in the military), yet at the same time, they want a military tribunal for suspected “terrorists” who are also not in the military? If they are successful in getting these men tried in a military tribunal, does this mean that we will no longer be able to execute spies because they will now be considered “military” and protected under the Geneva Convention?
The second reason is this; if they [spies] are not actual members of an army, they are not following military orders, and therefore are civilians. Our founding fathers said something about holding “… these truths to be self-evident, that all men are created equal… endowed with certain unalienable rights, among these the right to life, liberty, and the pursuit of happiness.” It was this concept that was brought into the Constitution, or more specifically, the Bill of Rights. Nowhere will you find it written in either of these documents that you must be born in the United States to have been born with these rights. In fact, “all men” were born with these “unalienable rights”, and thus those rights cannot be taken from any man, and no man can give those rights away, they can only be violated. Look further in the Constitution, you will be hard pressed to find an allowance to violate a man’s rights, specifically in this case, a man’s right to a jury trial.
joe4liberty | Feb 16, 2010 | Reply
Dear Joe4Liberty,
Yes we are all created with equal rights. But the Founding Fathers made a covenant with the government that they created, that it will uphold and defend those rights against any majority of democratic voting process or against any branch of the constitutional government.
So other foreigners have those rights but there exists International law which “expresses the idea that only citizens of a country can be compelled toward service and be taxed for the privileges of their government upholding those rights.”
Interjecting an important concept: throughout history, we leaned that all preservation or lack of preservation of rights depends on physical force to back up the preservation. The law of “prise” and of the Conqueror. As ugly as it is, is the law of the jungle be it one animal, such as a lion, or be it a group of animals, such as the wild dogs of Africa. As always, the greater force will prevail. Throughout history, conquerors made criminals out of the conquered. In other words, in personal as well as social arenas, situations, you must be willing to die to protect your loved ones, your community, your rights. If you are not willing to die, then you will, as in past history, become a slave to the “dominant male” to the “dominant group” to the dominant political philosophy. All belief systems, all life is subject to the “law of the jungle”: the use of force to back up their beliefs. And if and when we die, we must know that it was so that our children and other good people will live without being slaves, or tortured, or continually be murdered. Good people must triumph over evil people if the human race will survive. If you are willing to trade your life for a good cause, you must believe that it is absolutely necessary so that your belief will allow you to face the end of all that is life. But remember now that you will not remember, once you are dead, any pain nor anything else. Your only pleasure, your solace is knowing before you die that you have done a great deed, you fought and sacrificed your life so that others may live in love. Teachings of Christ in the New Testament mention this: “The greatest gift is he that lays his life down for his friend.”
Charles Labianco | Feb 16, 2010 | Reply
For the vast majority it’s probably a bit of all three. They certainly haven’t read it; they think they understand it in a vague sort of way, but in fact they don’t understand it at all; and, in any case, they don’t care about it—they only care about getting and keeping power.
None of that surprises me given what I know about politicians and civil servants. What does surprise me a bit is the implication that they also don’t care about their oaths. Venal though they are, I would have expected that having sworn an oath to uphold the Constitution at least a few of them would feel honor bound to either do what they had sworn to do or resign, but obviously they don’t.
Roger Pilon suggests that in the 1930s the country went through a bloodless “revolution” in which the written Constitution of 1787 was quietly replaced by a new unwritten version consisting of the old one with various passages excised or changed. I believe a number of liberal constitutional scholars take more or less the same view. It may be that a few of the most sophisticated officers of state, Supreme Court justices for example, will be able to reconcile their oaths with their actions on this basis, but don’t think it can account for the behavior of the others. It remains a mystery for me.
Jon Guze | Feb 16, 2010 | Reply
Charles Labianco,
You are indeed correct that acting to protect the innocent is just and honorable, but this virtuous concept is exactly the opposite of the rules of the jungle that “might makes right” or “the end justifies the means.” Moral principles are objective truths (standards rooted in natural law: see C.S. Lewis’s book, The Abolition of Man) upon which we judge our actions and those of others. The “rule of law” means that only just or righteous conduct is then allowed and forms the legal basis for civil society. You are further correct that in order to protect the innocent, having the means to do so is essential, but such means cannot themselves abridge the rule of law for if they do and the natural law standard itself, we are then left with a system of predation, exactly what we are seeking to oppose. This is why Judge Napolitano is completely correct in opposing military tribunals and the U.S.’s foreign policy of undeclared and invasive wars.
David Theroux | Feb 16, 2010 | Reply
When the DHS classifies conservatives and constitutionalists as “terrorists”...
...will the “right wing extremists” still rabidly support military tribunals for terrorists?
Ron Jones | Feb 19, 2010 | Reply