The chief criticism of the tribunals has always been that the president cannot have the unilateral power to define offenses, pick prosecutors, select judges, authorize charges, select defendants, and then strip the civilian courts of all powers to review tribunal decisions. This principle goes all the way back to the Declaration of Independence, which listed, among the founders' complaints against King George, that he "has affected to render the Military independent of and superior to the Civil Power"; "depriv[ed] us, in many Cases, of the benefits of trial by jury"; "made Judges dependent on his Will alone"; and "transport[ed] us beyond Seas to be tried for pretended Offences." For these reasons, the Supreme Court said during the Civil War that if tribunals are ever appropriate, it is up to Congress to define how and when they are to be used. The current administration has argued that this constitutional history and structure is not relevant because military necessity permitted it to act without explicit congressional authorization.
But charges aren't being brought against planners of the Sept. 11 attacks or other terrorist atrocities. Instead, the president is using these tribunals against minor offenders, where the claim of military necessity is weak. To boot, charges are being brought nearly two and a half yearsafter Sept. 11, dramatically undermining the arguments for avoiding congressional delay. And if the administration prevails at the Supreme Court, the rules for the military commissions—from the definition of substantive offenses to the procedural rules and review guidelines—will be slanted even more in favor of the prosecution than they already are.
Times of crisis demand special responses. But when the crises are long in scope, without a definitive end, and when time permits national deliberation and decision-making, both constitutional and pragmatic values are best served by having our nation's representatives and judges consider that response—not resorting solely to executive decree. The conspiracy charges are the most dramatic step yet in the slide down a dangerous anticonstitutional spiral.