George W. Bush and the Military Tribunals
This month’s Presidents and the Constitution eLesson focuses on President George W. Bush and his response to the September 11, 2001 terrorist attacks on the United States. Days after the attacks, Bush demanded that the Taliban government in Afghanistan turn over Osama Bin Laden and shut down Al-Qaeda training camps. When the Taliban refused, Bush ordered strikes on the country. After hundreds of enemy combatants were captured on the battlefield in Afghanistan, in the U.S., and around the world, the question of how detainees in the War on Terror should be treated became problematic. Were accused terrorists criminals, or were they illegal combatants (aggressors guilty of breaking laws of war)? Bush’s answer to that question—that they were illegal combatants not entitled to due process protections of U.S. law, but who should be subject to Military Tribunals—became harder and harder to justify to the American people as time went on.
On September 11, 2001, radical Islamic terrorists hijacked and crashed four passenger jets in New York, Washington, DC, and Pennsylvania. In all, 2,976 people, mostly civilians, lost their lives on that day. In the days following the attacks, US and British intelligence confirmed that Al-Qaeda, led by Osama bin Laden, had planned and carried out the attacks. On September 20, President George W. Bush addressed Americans—many of whom had never heard of Al-Qaeda—in a televised speech before a joint session of Congress. Bush contrasted the September 11 attacks on civilian targets with December 7, 1941 when the Japanese bombed the naval base at Pearl Harbor. He explained that while Al-Qaeda was linked to more than sixty countries, its base was Afghanistan. He condemned the Taliban regime which controlled Afghanistan, and announced the beginning of a War on Terror.
Bush identified Osama Bin Laden as the “prime suspect” in the attacks. The US demanded that the Taliban deliver Bin Laden and other Al Qaeda leaders to the US, and shut down the numerous Al Qaeda training camps in the country. The Taliban refused. The U.S. began bombing Afghanistan on October 7, 2001.
Two months later, President Bush approved the use of Military Tribunals to try accused terrorists, including many individuals captured in Afghanistan. Bush said that the Tribunals were needed to “to protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks.” A detention camp was set up at the US Naval base in Guantanamo Bay, Cuba.
Military Tribunals are court proceedings used to try the enemy for violations of the laws of war. Military Tribunals differ from criminal in some important ways. Military Tribunals are not required to preserve many of the rights protected in the Bill of Rights. For example, the Sixth Amendment requires criminal trials to be open to the public, but Military Tribunals can be secret. Strict rules of evidence in the civilian justice system may not apply in a military tribunal. Decisions of Military Tribunals cannot be appealed in federal court. Rather, the President, as Commander in Chief, makes the final decision in reviewed cases.
Military Tribunals have been a part of every war in U.S. history through World War II. During World War II, the Supreme Court unanimously upheld their use for unlawful combatants, even when the accused were US citizens. At the time Bush was President, no President had ever asserted that the U.S. government should have to extend Bill of Rights protections to people who are not citizens of the United States and who are accused of making war against the US.
A little over a month after the first prisoners arrived at Guantanamo Bay, the first habeas corpus petition (a petition challenging detention) was filed. That case was dismissed. More petitions followed and were also dismissed. But in the years that followed, public unease with the indefinite detention of suspected terrorists at Guantanamo Bay grew. Inspectors at Guantanamo Bay reported ill prisoner treatment. The U.S. Supreme Court stopped dismissing habeas corpus petitions and progressively expanded the rights afforded to detainees at the camp.
In 2004, the Supreme Court held in Hamdi v. Rumseld that habeas corpus did not depend on citizenship status. The President responded by convincing the Republican-led Congress to pass the Military Commissions Act of 2006, which addressed wartime conditions when habeas corpus did not apply to alien enemy combatants.
The Supreme Court held that detainees had the right to appeal their detentions in federal court in the 2006 case of, Hamdan v. Rumseld, which involved Osama bin Laden’s limousine driver.
The Supreme Court continued to chip away at the President and Congress’s power to establish the Military Tribunals in Boumediene v. Bush (2008). The Court found the Military Commissions Act of 2006 to be an unconstitutional suspension of habeas corpus. Enemy combatant detainees at Guantanamo were entitled to the Fifth Amendment’s protection of due process.
In November of 2008, Barack Obama was elected President. One of his campaign pledges was to close the detention center at Guantanamo Bay by January 2010. U.S. troops remain in Afghanistan and Iraq, working to prevent the strengthening of Al-Qaeda.
- What ultimatum did President Bush give to the Taliban on September 20, 2001
- What order did Bush give regarding trials for accused terrorists?
- What are two differences between criminal trials and Military Tribunals?
- How did the Supreme Court initially respond to habeas corpuspetitions from detainees at Guantanamo Bay? How did the Court respond in 2004, 2006, and 2007?
- Should admitted and/or accused terrorists be afforded all constitutional due process protections? Explain your answer.