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Is President Bush's Executive Order Creating Military Tribunals Legal?

By Dahlia Lithwick
Posted Tuesday, Nov. 20, 2001, at 1:54 PM ET

Last week, President George W. Bush signed an executive order authorizing the use of military tribunals for select terrorists. The order gives the executive the exclusive right to identify, try, and even execute foreign terrorists, without the constitutional or evidentiary protections ordinarily afforded defendants in the United States. Some critics contend the order arrogates congressional law-making authority. Is there a limit to what can legally be done through an executive order, and what are the means to challenge one?

[Correction, Nov. 26, 2001. Explainer mistakenly referred to President Bush's order authorizing military tribunals as an "executive order." It was styled as a "military order," which means it's exclusively authorized under the commander in chief provision of the Constitution. However, the order itself in fact straddles the executive/military order line because it expressly relies on both congressional and military authority for its legitimacy, whereas a military order would have looked no further than the commander in chief authority. While there are technical differences between the two types of orders, the real significance lies in whether the president believes he is acting on congressional authority or on his own. Thanks to Steven Aftergood of the Federation of American Scientists for pointing out the error, and Dean Douglas Kmiec of the Catholic University Law School for clarification of the difference between the two types of order.]

There is no constitutional or statutory authority to promulgate executive orders, although presidents have been issuing them since 1789. The seminal Supreme Court decision in this area, Youngstown v. Sawyer, was handed down in 1952 after President Truman attempted to avert a national steelworkers strike through an executive order that would have allowed the secretary of Commerce to seize and operate most national steel mills. Truman rooted his legal authority to issue the order in various general and "aggregate" constitutional powers vested in the presidency. These included a specific claim that a massive steel strike would threaten national security and that this allowed the president to take over the mills under his "Commander In Chief" authority established by Article II of the U.S. Constitution.

The Supreme Court didn't bite, striking down the Truman order as an unconstitutional encroachment on Congress' exclusive law-making authority. The court laid out the rule for executive orders: An executive order must have either direct statutory or constitutional authority. Since Youngstown, executive orders carefully lay out the authority on which they are based. The Bush order attributes its authority to the commander in chief provision of the constitution, the congressional Use of Force Resolution from last September, and two provisions of the U.S. Code concerning the armed forces.

Some scholars contend that absent a formal congressional declaration of war, the president cannot exercise his commander in chief authority, and thus Bush's executive order is unconstitutional under the Youngstown test. The Use of Force resolution is also not the best authority for this order, since Congress explicitly rejected suggested language that would have allowed the president wide latitude to deter future terrorism. Others argue that regardless of what Congress says, we are for all intents and purposes at war. Still others argue that presidential authority to deter terrorism may nevertheless be grounded in various congressional anti-terrorism statutes.

How might Congress challenge the legality of the executive order, which was imposed without discussion or debate only weeks after Congress passed what it believed to be a comprehensive anti-terrorist bill? While Congress has the authority to revoke or de-fund an executive order, it almost never exercises that authority.

Whether or not the order is constitutional will therefore be decided, presumably, by a court, following an attempt by the government to try an alleged terrorist before a military tribunal. This route might be foreclosed by the order itself, which seems to prohibit any judicial review outside the military commission. This attempt to preclude judicial review may itself be unconstitutional, however. After President Roosevelt created military tribunals to try Nazi spies in 1942, the spies appealed to the U.S. Supreme Court. While the court upheld the legality of the Roosevelt order in a case called Ex Parte Quirin, it also upheld the constitutional requirement of judicial review.

Next question?

Explainer thanks Akhil Reed Amar at Yale Law School and Walter Dellinger at Duke Law School.

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Dahlia Lithwick is a Slate senior editor.
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