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Judge Napolitano in LA Times: The Case Against Military Tribunals

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.

By Andrew P. Napolitano | November 29, 2009
LA Times

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.

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Michael Nystrom's picture

Joe, your link doesn't work

Joe, your link doesn't work

To be mean is never excusable, but there is some merit in knowing that one is; the most irreparable of vices is to do evil out of stupidity. - C.B.

all i know is that I saw

all i know is that I saw Napolitano's opinion posted on facebook, and a boatload of pnac loving neocons posted that Napolitano was "out of his gourde" ...among other things.

my normal reaction would be to respond with digital napalm, rebuking their poor lineage, lack of intelligence, their hygiene and appearance, their honor, and anything else I could set hooks to ...but in the end I just closed my browser. I was so disgusted.

my only thoughts for those people were "f-you, you ignorant little savages, i got my family, my friends, a safetynet, the dailypaul, my guns, my brains and good lucks...I'm not supporting any of you mofos, and you all can go to hell"

it steams me to no end.

I'll say it again. If a neocon wins the nomination for 2012, including Palin, I will not just "sit out", or vote "3rd party" in the general election, I will vote for Obama or whoever is the Democratic nominee is....

better to set the pot to full boil. right now. and if Republicans haven't learned their lesson yet, then maybe I need to stick their noses in the dogshat some more ...."bad dog! bad dog!"

the judge is right on with

the judge is right on with this one.

And I quote ...

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

Does anyone else see something missing here that was key to Judge Nap's argument? I see no mention of trial by jury, just due process.

Furthermore it states, " ... in times of war or PUBLIC DANGER."

That seems to be a bit vague to me.

And here is the sixth amendment ...

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

I see jury trial here, but not a jury of peers. Also the 6th amendment seems to point out jurisdiction limitations.

Furthermore ...

In Ex Parte Quirin, the opinion uses the same language as in the 5th amendment, "But the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war or of GRAVE PUBLIC DANGER-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted."

Additionally, there is a "clear conviction" burden on the court to overturn the President's orders.

I think the Judge was a bit misleading with regards to this citation.

Not as clear cut as the Judge would want it to be.

Let me further quote from Judge Nap's editorial ...
"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."

Due Process you say? Are you saying that military tribunals do not constitute due process. If you do, then you will have to pardon every military man convicted of a court marshal. I see nothing about a civilian trial by a jury of peers.


You're citing the

You're citing the Constitution, particularly the amendment 5th but you're overlooking some things. "Due process" are words used throughout the constitution, its definition is fairly simple. It's the principle that government must respect all legal rights that are owed to a person according to the law.

No one is disputing whether or not war has been declared. That's an evident NO

So the question is; What is owed to the detainees at Guantanamo?

Judge Napolitano was spot on with his assessment in that respect.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."

Article VI Para 2 of the Constitution aka the Supremacy Clause

This meaning that their are more laws at work here for instance Geneva Convention (4 treaties) which the United States signed and ratified all of with the exception of two protocols in 1977 play a role, and cannot be overlooked, as the Constitution doesn't permit this to be so.

Even though some will argue the military commissions act suspends those rights, we know that thanks to Boumediene v. Bush that the legality of that act is in question, especially when it comes to US citizens being detained there.

In the House debate, Representative David Wu of Oregon offered this scenario:

"Let us say that my wife, who is here in the gallery with us tonight, a sixth generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, “I am a U.S. citizen”. That is a jurisdictional fact under this statute, and she will not have recourse to the courts? She can take it to Donald Rumsfeld, but she cannot take it across the street to an article 3 court"

As the congressman points out the act itself could be used to deny Habeas Corpus to American citizens.

As the judge points out and you quote

"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."

He's dead on, there is a whole history of court cases here from Quirin on.

Tribunals, military law, who it applies to, and how its carried out all fall under USC Title 10.(This being a law and also covered by the supremacy clause). USC Title 10 is very specific who it applies to. Military Men have specifically submitted to this, there is no question as to whether or not they fall under this law. So we need to know whether or not it is to be extended to the detainees.

Like I've been saying all along the answer to that is no way. Not unless you want to undermine Habeas Corpus, and completely rip the Constitution to shreds when it comes to declaring war vs not declaring war.

Very well written and a valid argument ...

But I would argue that according to the Judge's own citation the court must have a clear conviction that the President is violating the due process clause in order to mandate that these prisoners must be tried in civil court with a jury of their peers.

This is not a cut and dry issue and my most underlying motive in pointing this out is that Rand has come out in favor of tribunals and claims that position to be constitutional.

As I pointed out, in the constitution, there is an "or" after "declaration of war". That is clear, very clear.

Whether or not we are in Public Danger can be debated until the cows come home, but, in my opinion, Rand remains within the circle of constitutionality with his position.

A compelling arguement you give, but you also rely on court decisions quite a bit as oppose to the primary document of the constitution and you are debating with someone that has some (not a lot but some)reservations with the doctrine of Judicial Review.


I appreciate the reply, and

I appreciate the reply, and you of course make good points yourself.

With the precedence that has been set and the way things have been going with the current administration chances are we're going to be trying the detainees here in the US under domestic law regardless of all the fuss. Rand or the Judges opinion on the issue will mean little in the scheme of things. This is more or less not my problem with Rand Paul, and it's not the Judges either because if you look he's said nothing about him in this respect. The Judge has had Rand on the show multiple times and they most likely have a deep respect for one another.

I can't vote for Rand as I'm not a Kentucky resident, and yes he's better than the Republican and Democratic establishment candidates on all of the issues. He's also a Paul, and to say his father has no influence on him at all is silly.

Frankly my problems with Rand stem from the Glenn Beck 9/12 pledges (which he supposedly signed). I've got a real problem with those pledges, and with Glenn Beck in general, and I know I'm no the only one. Lew Rockwell and Thomas DiLorenzo both have published interesting pieces on the subject.

You bring up the two issues that I, too, have ...

with the campaign.

I actually have advocated to release all the prisoners based on Habeus Corpus, and I consider the 9/12 movement to be neo-con light.

But I also know that I could not get elected with those positions in KY even if I were Rand Paul.

Having said that ...

Rand has based his campaign platform on following the constitution. And I think he has a strong argument that his position with respect to the GitMo prisoners is constitutional. If I felt otherwise, I would say so. As it stands now, I will be going door to door for him next year. I can't vote for him either, but I can drive across the river and campaign for him.

God Bless.


...but does the Geneva Convention Treaty have a 'Public Danger'

escape clause?

Public danger?

is the public in danger? No
Point irrelevant.

I am not sure ...

But I do not see Congress objecting to this policy. Congress ratified this treaty. It is their job to speak up.

And if the court wishes to object, then it must have a "clear conviction" that the Presidential edicts are in clear violation of the constitution.


he has already been called

he has already been called out for flip-flopping to his current position

Ventura 2012

well said--

it's hard to be awake; it's easier to dream--

thank heaven there are still thinking people "out there"!

it's hard to be awake; it's easier to dream--

Rand blew it big time, sorry

Rand blew it big time, sorry to say.

I agree.

Rand Paul is wrong on this issue. That said, I still support him.

A Way for Trey Grayson searchers to find Rand Paul
Trey Grayson For US Senate 2010 in Kentucky. See also http://www.jointreygrayson.com/ Spread these links around

SD Ron Paul liberty Operation up an running.

Donate here https://rally.org/southdakotaforliberty/donate
Volunteer for Phone from Home here http://www.southdakotaforliberty.com/node/4

I support Rand but also agree with the Judge...

the problem is now, suppose Rand reads this article and sees the light... if he changes his stance would the opposition label him a flip-flopper? It's a tough issue and we should try to understand why and how both sides think the way they do.
We don't know how to mind our own business
'Cause the whole worlds got to be just like us
Now we are fighting a war over there
No matter who's the winner
We can't pay the cost
'Cause there's a monster on the loose

'Cause there's a monster on the loose

Excellent article, thanks for posting.

I am so glad to see someone pointing out the hypocrisy of a war on terror and the military tribunals.


Far larger then the Gitmo issues, in my opinion, is the war in Afghanistan, because it affects/kills more people.

Yet on this important day when Obama is set to announce an ENORMOUS troop surge, no one here is talking about it. Threads about it fall off the page and die. I don't think people care grasping what an atrocity in the making this is.

That sucks. People here should care more.

Is there a way to INVITE

the MORE outspoken opponents to the Daily Paul for a discussion and even brainstorm how to get information before the public?

Prepare & Share the Message of Freedom through Positive-Peaceful-Activism.

Until someone from the movement authors an article

or gets on TV to talk about it, there probably won't be a post here in regard to Obama's War. Most of the posts on this website references and links to other material; not very many original editorials and such.

We can make our own

editorials, then. You know...get a head start, start pooling insights.

I posted a thread to a great article by an Afghan parliament member, Malalai Joya. I think she may have met with Ron Paul when she was visiting the US, since she met members of Iraq Veterans Against the War and they introduced her to some of the few anti-war Congressmen. I couldn't get clarification on her meeting RP, though.

Nobody cared whatsoever- see?

Maybe because it made too strong a case for the fact that the US is involved in drug trafficking there. Oh well, the truth hurts.

There was an article I

There was an article I posted to earlier this week about passing on the anti-war torch from the lefties to us. Honestly not much of a torch to pass considering how pathetic of an opponent to the war the left has been. Now that they got their man in office look what's happening.

This is a good opportunity for us.

I have been getting through to a lot more people on the left about Ron Paul due to their anti-war stance and their disappointment with what Obama has been doing. Not only on the war issue, but the economic as well, none of them support bailing out banks, etc. Seriously, do not push them away! Now is the time to pull them in. I have found lately that I have way more in common these days with my liberal friends than I do my republican ones, they are way more accepting of Ron Paul as well!

"Truth is treason in the Empire of Lies."

"Truth is treason in the Empire of Lies."

Still waiting for a retraction from the Rand Paul campaign.

Or at least a response to his supporters that feel betrayed by his stance on this issue.

I love the judge, and I am

I love the judge, and I am sick over Rand compromising on these most fundamental constitutional ideals.

I'm glad the Judge remains

I'm glad the Judge remains on the side of Habeas Corpus.



The Rand Paul Cheerleaders

need to put away their pom-poms and listen to the Judge, a true patriot. Rand is toast.

Take that, Rand Paul! You

Take that, Rand Paul! You listen to the Judge.