Military Tribunals and the Separation of Powers

On November 13, 2001, President George W. Bush issued an executive order which provided for the creation of military tribunals for the trial of persons responsible for terrorist attacks against the United States and its overseas agencies. The order was in response to the attacks on September 11, 2001 on the World Trade Center in New York City and the Pentagon outside of Washington D. C. and the initiation of armed hostilities between the United States and Afghanistan. The order stated that "an extraordinary emergency exists" because of "potential acts of terrorism"such that it is "not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." The order is directed against non-citizen terrorists namely: persons about whom "there is reason to believe" that they are "member[s] of the organization known as al Qaida;" persons who have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy;" or persons who "knowingly harbored" a person described above. Rules to be promulgated in the future shall govern procedural rules. The tribunals will provide for the "admission of such evidence as would, in the opinion of the presiding officer... have probative value to a reasonable person;" and the protection of classified information. Rules will govern the "conduct of the prosecution... and... of the defense by attorneys for the individual subject to this order;" they will cover conviction and sentence (including the death penalty) only upon the concurrence of two-thirds of the members of the commission, and "submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense..." Persons subject to the order "shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, ... in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal."