National emergency - Military tribunals
Part IV explains why Congress does not have the power under the Constitution to authorize military tribunals to try civilians during war or
other national emergency.
President Bush has claimed the power to create and operate a system for adjudicating guilt and dispensing justice through military tribunals without explicit congressional authorization—threatening to establish a precedent that future presidents may seek to invoke to circumvent the need for legislative involvement in other unilaterally defined emergencies.
When discussing the constitutional indispensability of the role of the civilian courts, it is critical to separate arrest and temporary detention on the one hand, and military trials on the other. Our constitutional traditions support the use of emergency powers by the political branches to authorize
the arrest and short-term detention of civilians without having to show cause to the civilian courts.
To try and punish a civilian goes beyond the necessity of temporary, short-term detention to protect the public safety from imminent harm. Trial and punishment entail more serious, long-term consequences, both direct and collateral, including in many cases a potential
sentence of death.
Whether by suspending the writ or the exercise of its other Article I powers, Congress
cannot use the existence of war or an emergency to override the Sixth Amendment right to a jury trial, or to eliminate the power of the judiciary to provide remedies for violations of this right in functioning civilian courts
The militia power under Clause 15 traditionally includes the power to declare martial law and to authorize temporary detentions in domestic
emergencies and civil disorders that threaten to overwhelm state law enforcement. Although the use of federal troops or militia as a domestic police force is prohibited by the Posse Comitatus Act, the current version
of the Militia Act of 1785 (enacted in part pursuant to Congress’s Clause 15 power), gives the President the power to use federal troops or militia in the event of an insurrection or rebellion that makes it “impracticable [for state authorities] to enforce the laws of the United States in any state
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