True Conservatives Condemn Military Tribunals for Terrorists
by Rick Ungar
Recently by Andrew P. Napolitano: Justice Alito Was Right
When is a conservative not a conservative?
When they do a 180 degree turn away from their own ideology in order to curry populist political favor.
As the White House engages in a war of words with the likes of Sen. Kit Bond (R-Mo), Rep. Peter King (R-NY) and Rep. John Hoekstra (R-Mich.) — each a self-professed, committed ultra-conservative — over the Mirandizing of the Christmas Day bomber and the failure to place him into the military justice system as a way of avoiding rights due him in the Article III courts, none of these players seem to realize they have completely switched ideological sides.
Just ask Fox News Commentator and long-time conservative judicial and legal voice, Judge Andrew P. Napolitano.
According to Judge Napolitano, an avowed disciple of Barry Goldwater and Ronald Reagan, the very concept of a military tribunal for defendants of a “war on terror” is a blatant disregard of the U.S. Constitution.
The Judge’s argument is simple —
It’s a violation of the Constitution to use the panels without a declaration of war — and just calling it a u201Cwaru201D on terror doesn’t count. ~ Via Los Angeles Times
Napolitano argues that 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 simply the opinion of one conservative.
Prior to 9/11, there had not been a military tribunal in America since WWII when it was used to try Nazi saboteurs who had came ashore in Amagansett, N.Y., and Ponte Vedra Beach, Fla., put on civilian clothes, and set out on a mission to blow up strategic U.S. targets. When the Nazis were caught, President Roosevelt determined that they should stand trial before a military tribunal for two reasons — Congress had declared war against Germany and the saboteurs had broken the rules of war.
In upholding Roosevelt’s actions, the 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.
And that is exactly how it was done before the Bush Administration decided to take their own novel approach, declaring that the Constitution allows for the use of military tribunals, a “tool of war,” whenever the president decides to call something a “war.”
As we know, every Supreme Court decision on the subject since 9-11 has come down against the constitutional interpretations of the Bush Administration.
For those who would argue that the Supreme Court of 1942 was operating in a world where it was far simpler to identify an enemy nation rather than the terrorist groups of this era and, thus, could not have projected the change in the future of warfare, this is not an unreasonable point. However, it is up to Congress to determine that the time has come to issue a Declaration of War against this new style enemy — not the Court. Until Congress decides to issue such a declaration, there is nothing that would change the Court’s precedent which remains clear — a war is not a war until Congress (not the president) declares it a war.
So how do lifelong conservatives manage to cross over into highly questionable ideological and anti-Constitutional territory without being called out for desertion of their conservative principles?
By focusing on populist reaction rather than the responsibilities of their conscious and their office.
Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel. His next book is Lies the Government Told You: Myth, Power, and Deception in American History, (Nelson, 2010).