Another Reason Military Tribunals Are Not Appropriate for Terrorists

I’ve written before about constitutional reasons to guarantee basic rights to those accused of terrorism.  But even discounting those reasons, it is still unconstitutional to try suspected terrorists in military tribunals.  Why?  For the simple reason that we have not declared war — and “just calling it a ‘war’ on terror doesn’t count.”

In fact,

no president has yet to appear before Congress to ask for a Declaration of War – nor has Congress ever made such as declaration. Therefore, there can simply be no Constitutional justification to create military tribunals to try alleged enemy combatants  as they are enemy combatants in a war that Congress has never declared.

This is not based on unsubstantiated legal opinion, but in specific case law:  “[T]he Supreme Court ruled in Ex Parte Quirin that a formal declaration of war is the legal prerequisite to the government’s use of the tools of war.”

Conservatives often claim to be for “law and order.”  But many supposed conservatives have framed the issue of dealing with terrorists in terms of security — not liberty:  “Terrorists scare us, so who cares if they have legal rights?”  And, ironically given their “law and order” claims, conservatives’ ideas on terrorism are perhaps the greatest flouting of law and order in recent history. 

Sure it’s a bit frightening to hold a terrorist trial in the middle of New York City. But the law says that this is the way it is supposed to be done in this country.  Of course we want to get as much information out of an alleged terrorist in order to help prevent other attacks. But if we sell out our core values in the process, then we’ve already been defeated.

So while we’re all on this true-limited-government-support-the-Constitution kick, let’s do it with some consistency, even if it scares us.

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