Judge Andrew Napolitano: Military Tribunals Are Unconstitutional

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.

David J. Theroux is Founder, President and Chief Executive Officer of the Independent Institute and Publisher of the quarterly journal, The Independent Review.
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