Letter to Members of Congress Regarding Military Tribunals

Document Date: November 29, 2001

Re: President Bush’s Order Establishing Military Tribunals

Dear Member of Congress:

We are writing to ask you to exercise your oversight responsibilities and reclaim your proper constitutional role with regard to President Bush’s “Military Order” of November 13, 2001, permitting the use of military tribunals against any non-citizen accused of terrorism.

The Military Order applies to some 20 million non-citizens in the United States, most of whom are legal residents, and any other non-citizen anywhere else in the world, and could permit indefinite detention without trial in violation of a key detention compromise made in the USA Patriot Act. It could, at the stroke of a pen, be expanded to include United States citizens.

These military tribunals will not observe the same procedures as ordinary courts-martial under the Uniform Code of Military Justice and do not contain the protections available in the ordinary military justice system. They could, at the discretion of the Pentagon, permit secret trials, permit conviction or even execution on only a two-thirds vote of military officers, require less than proof beyond a reasonable doubt, deprive a defendant of counsel of their own choosing, and do away with the presumption of innocence.

These fundamental rights not only ensure a fair trial of the accused, but the safety of the public. They help ensure that the government convicts the guilty – and only the guilty – thus making sure that the actual perpetrators of terrorism are not still at large because an innocent person stripped of constitutional protection was wrongly convicted.

While the ACLU does not believe that the use of military tribunals is unconstitutional in all circumstances, the ACLU strongly opposes the Military Order because:

  • Unlike President Roosevelt’s order permitting trial of spies and war criminals during World War II, the order was issued without Congressional authorization, as required by the Constitution, which gives Congress, not the President acting alone, the power “To define and punish . . . Offences against the Law of Nations.”
  • Regular courts have so far proven successful in prosecuting terrorism cases. Military tribunals should be authorized by Congress only if the regular courts cannot function in particular cases.
  • Military tribunals, if authorized by Congress, may only be used constitutionally used against clearly identified “unlawful enemy belligerents,” – a class far narrower than all persons accused of terrorism crimes — and have normally been reserved for individuals captured in a zone of military operations.
  • Military tribunals, if authorized by Congress, must comply with basic international and constitutional due process standards, which are not provided for by the order.

    The ACLU strongly urges Members of Congress to consider carefully the breadth of the Military Order, and to reclaim its constitutional power by deciding for itself under what circumstances, if any, military tribunals should be authorized in terrorism cases and to ensure that basic due process protections are preserved.

    More information is included in a memorandum attached to this letter, also available at /SafeandFree/SafeandFreelist.cfm?c=206.


    Laura W. Murphy

    Timothy H. Edgar
    Legislative Counsel

    ACLU Memorandum on Military Tribunals

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