Rule by Decree in the United States of America

One serious problem with the military tribunals created to try men detained during the fighting in Afghanistan is the manner in which these tribunals were created. They were established by an order of the President, who has taken upon himself the authority to constitute tribunals. No matter that such authority is given by the United States Constitution expressly to the Congress. Recall Article I, Section 8 of the United States Constitution:

` The Congress shall have Power . . . To constitute Tribunals inferior to the supreme Court;

I suppose that President Bush might argue that, since the decisions of his tribunals may not be appealed (in the courts He has constituted, that is), they are not inferior to the Supreme Court. But a reading of the United States Constitution that allows the Executive to constitute, at his will, tribunals superior to the Supreme Court, seems likely not to please that Court, if its ridiculousness as an approach to the administration of justice is not apparent even to a schoolchild.


The creation of courts is a legislative function. The maintenance of the court system, once established, and the ensuring of its effective functioning is the proper task of the Executive Office. There is no authority, in the United States Constitution or (more importantly) in any principle of justice, which gives to the Executive the power to make tribunals. (Here is not meant the Justice found in the `Justice Department’ or in the `Supreme Court Justices’. Rather that sentiment resident in the minds of honest men, women, and children).


In fact, the United States Constitution clearly contemplates that any judicial appointee of the President should first be approved by the Congress, except insofar as Congress has expressly delegated to the Executive Office the power to make such appointments. The creation of a tribunal is a legislative act, and should therefore be the office of the Congress, and not of the President, who was once thought to be merely the executor of the will of people.


The United States Constitution is nothing sacred simply to be invoked as authority. In fact, it is a document in need of the updating for which its authors provided a mechanism, written as it was in the eighteenth century, before the invention of things so basic to the American Way of Life as automobiles and F-16’s. For instance, it contains no explicit right of privacy nor does it grant residents of Washington D.C. the representation for which they are taxed. However, it contains the reasonable enunciation of certain democratic principles the Executive Office purports to honor and effect, and it is these, anyway, that are infringed upon when by Decree the Executive Legislates, constituting a tribunal.

Recall that Article I, section 8 of the United States Constitution delegates to Congress also the powers:

`To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;’

It seems, then, that the Constitution makes reasonably clear to whom should fall the responsibility of deciding what to do with men captured during military conflict and accused of offenses against the United States. (And also to Congress, and the Nations with which the United States has signed Treaties, should fall the task of deciding what to call such men, whom some might call `prisoners of war’ and others might call `unlawful combatants’. Even a schoolchild can see that there needs to be some reasonably fair and principled way of making the determination, and that for such it is insufficient to rely upon the good judgment and thoughtful disposition of the Executive Office and its attendants in the Department of Defense.)

Of course the United States Constitution also prohibits Congress from passing {it ex post facto} laws, the making criminal of something that was already done, and was not illegal when it was done. It is hard to see how a tribunal not yet constituted could have authority over things not yet crimes, and punish men not yet accused and still could that tribunal claim to be an instrument of government free and democratic. Fortunately for He whose decrees have constituted these tribunals, He is not Congress, and so not restrained by the Constitution from making {it ex post facto laws} (or any other kind of laws).

Finally, the tribunals constituted by the Executive Office have the power to give sentences of death. Even were it granted that the Government should be able to exercise in its courtrooms the power to decide the worthiness of an individual to continue living (it is not so granted), it is unjust, undemocratic, and against the supposed spirit of the United States Constitution, to allow the Executive Office to enact laws creating tribunals with this power. At the very least such a power should come from an enactment of Congress, the rightful Legislative authority in this supposed democracy, so that the blood of the Pilates on the Commission shall be on the hands of those who approve of such a form of Governance. The Executive’s current stance allows that blood to be on the hands of Him and His minions alone. Perhaps this is Just, but it is not Democratic.