FOX News Channel's Legal Analyst: Military Tribunals for Guantanamo Bay Prisoners Are Unconstitutional

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Over the Thanksgiving holiday weekend, a very interesting editorial appeared in the Los Angeles Times, authored by former New Jersey Superior Court Judge Andrew Napolitano, who currently works for FOX News Channel as a legal affairs analyst. In it, Judge Napolitano laid out a very clear and concise explanation of why the collective tearing of hair, clutching of pearls and gnashing of teeth coming from the American right wing at the news that alleged 9/11 mastermind Khalid Sheik Mohammed will be tried in civilian court is entirely off-base. It is a relatively short article that carefully stacks each point on top of the one preceding it, and I recommend checking it out in its original form to get the full effect, but the highlights are below.

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... Thus was born the "war" on terror.
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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.
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All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

That the target of the Cole attackers was military property manned by the Navy offers no constitutional reason for a military trial. In the 1960s, when Army draft offices and college ROTC facilities were attacked and bombed, those charged were quite properly tried in federal courts. And when Timothy McVeigh blew up a federal courthouse in Oklahoma City; and Omar Abdel Rahman attempted in 1993 to blow up the World Trade Center, which housed many federal offices; and when Zacarias Moussaoui was accused in the 9/11 attacks,all were tried in federal courts. The "American Taliban," John Walker Lindh, and the notorious would-be shoe bomber, Richard Reid, were tried in federal courts. Even the "Ft. Dix Six," five of whom were convicted in a plot to invade a U.S. Army post in New Jersey, were tried in federal court. And the sun still rose on the mornings after their convictions.

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.

That's a pretty clear and unambiguous argument. So can we stop the shrieking and the pants-soiling and start acting like the nation we're supposed to be?