ecuting a military action on behalf of an enemy nation or group in a manner that allegedly violates the laws of war.

2. Although much of the current debate proceeds on the premise that these two should be treated differently, where these reasons are present there seems little principled basis to distinguish between an unlawful belligerent who is a resident alien, blending in with and hiding among the United States population, and one who is a non-resident alien, openly engaging in warfare on United States civilians from beyond our borders. Indeed, the reasons for favoring military tribunals do not appear to distinguish between citizens and non-citizens. As the Court held in Ex parte Quirin, 317 U.S. 1 (1942), when a citizen disavows his homeland and sides with the enemy, he may become an enemy belligerent. See Id., 317 U.S. at 16 (“Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war"). Indeed, being a traitor as well as an unlawful belligerent, the citizen who wages such warfare on his homeland may well be regarded as more culpable than the alien, not less. 16

In sum, it seems wisest in practice to limit military tribunals-as the Bush Administration has all but promised it would likely do in practice to a relatively small group of enemy alien leaders, captured abroad, of terrorist groups clearly identified by Congress, and an even smaller group of their colleagues who are reasonably believed to have played similar roles while concealed among our people. In theory, however, the two criteria essential to establishing military, as opposed to civilian, jurisdiction should not rest upon any such difference in status.

The first is that the person to be tried by a military tribunal or commission must be an enemy, see Johnson v. Eisentrager, 339 U.S. 763, 776 (1950)—that is, someone acting at the behest of a nation or other entity warring against the United States; the second is that the enemy must be charged with unlawful belligerency, or any other established offense against the laws of war, sufficiently serious to warrant such disfavored treatment. See Ex parte Quirin, 317 U.S. at 11.

Strikingly, the November 13 Military Tribunal Order extends the range of offenses that it subjects to military tribunals so as to include "any and all offenses triable by military commission," § 4(a), not just those that offend the laws of war, based, evidently, upon an unexplained finding that "prevention of terrorists attacks" requires the detention for, and trial by, military commissions not only "for violations of the laws of war" but also for "violations of. other applicable laws," of all “individuals subject to this order," § 1(e) (emphasis added). The law is settled, however, that an alien may be subjected to trial by a military tribunal only if he meets both of the criteria set forth above. See Yamashita, 327 U.S. at 26. Even though military rule is "properly applied. . .on the theater of active military operations, where war really prevails,” Milligan, 71 U.S. at 127, trying a captured soldier as a criminal for merely fighting in accord with the laws of war on behalf of the nation or other entity he represents appears to be universally condemned. Under the Geneva Convention and other international instruments, such soldiers must be held as prisoners of war, to be repatriated at the war's conclusion. This could pose a problem in a case such as that of Taliban foot-soldiers, captured while engaged in combat against the Northern Alliance, whom our military leaders suspect of harboring, or working in close concert with, Al Qaeda. Unless such combatants happen to be among Al Qaeda's leadership, they are most unlikely to have been sufficiently responsible for that group's terrorist acts to count as war criminals, but viewing them as entitled to treatment as prisoners of war would seem to require their repatriation in the eventually reconstituted Afghanistan, to Saudi Arabia, to Pakistan, or to their mother country whatever it might be none of which nations might be willing to welcome them. Even though the indefinite and potentially permanent detention of deportable aliens residing in the United States may well be unconstitutional even if no other nation will accept them, see Zadvydas v. Davis, 121 S. Ct. 2491, 250002 (2001), that protection does not seem to extend to “aliens outside our geographic borders," Id. at 2500 (and cases cited therein), much less to enemy aliens outside those borders, so it may well be that, since international law could hardly require the admission of such captured enemies into the United States, there is no alter

16 Congress is, however, free to exempt United States citizens from trial by tribunal altogether: "[O]ur law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments". Johnson v. Eisentrager, 339 U.S. 763, 769–770 (1950).

native to their indefinite detention by the United States, at a suitable place outside our borders, unless and until their repatriation becomes possible.17

3. To enforce this basic jurisdictional boundary, Congress should provide for some form of tribunal-it need not be an Article III court in the first instance18-to review the President's threshold assertion of military jurisdiction, and should provide as well for some suitably expedited form of habeas corpus review in an Article III court if the initial review was by some lesser power. See, e.g., H.R. 3162 (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001) (signed into law October 26, 2001) § 412(b) (providing expedited habeas corpus review). 19

4. In addition, of course, Congress would do well, acting under its Article I, §8, ch. 10 power to "define and punish. . .offences against the law of nations," to define more precisely those violations of the laws or customs of war which the military tribunals may hear,20 and to specify or otherwise monitor the penalties to be imposed. Punishments could perhaps be made proportionate to those meted out under the Federal Sentencing Guidelines.

PROCEDURE

5. Domestic law of course imposes due process safeguards on military tribunals of every possible form. Thus, in Middendorf v. Henry, 425 U.S. 25 (1976), the Court took note of the traditional categorization of courts martial (general, special, and summary—i.e., non-adversarial.), and required Fifth Amendment due process protections to be extended to a defendant even at the lowest (summary) of the three levels of court martial.21 Id. at 43 ("plaintiffs, who have either been convicted or are due to appear before a summary court-martial, may be subjected to loss of liberty or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment"). The two higher levels (general and special) are adversarial, and accordingly require heightened due process safeguards.

6. The court martial provisions of the Uniform Code of Military Justice (UCMJ) provide the minimum procedural safeguards required by military law, and may usefully be considered by Congress as setting a template against which to measure possible legislative proposals for creating new types of military tribunal.22 “General

17 Nor is the prospect of trying terrorists in international tribunals a particularly promising one. As former Assistant Secretary of State Harold H. Koh recently observed, "As recent efforts to try international crimes in Cambodia and Sierra Leone show, building new tribunals from scratch is slow and expensive and requires arduous negotiations. Geopolitical concerns in this case would predominate, and the impartiality of the tribunal would inevitably be questions by some in the Muslim world. These tribunals are preferable only when there is no functioning court that could fairly and efficiently try the case, as was the situation in the former Yugoslavia and in Rwanda," The New York Times, November 23, 2001, Sec. A at 39 ("We Have the Right Courts for Bin Laden").

18 This type of administrative solution parallels the manner in which the immigration statutes provide for determination of whether an alien fits a particular classification, while preserving habeas review of non-discretionary decisions for Article III courts.

19 The provisions of the USA-PATRIOT Act also define, for purposes of that Act, what constitutes "engag[ing] in terrorist activity" and what organizations are terrorist. See §§411 (a)(1)(F) & (G). Congress should consider tightening those definitions, enacted there with great haste and vague enough to show the effects of the rush, as part of its determination of the categories of individuals who should be subject to trial by military tribunals.

20 Under Article 3 of the International Tribunal for Yugoslavia, for example, the following acts would subject a terrorist to military jurisdiction:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property.

21 General courts martial require "a military judge and not less than five members" of the panel, and may impose capital sentences. 10 U.S.C. §§ 816, 818. Special courts martial require three panel members, and may not impose capital sentences. Id. at 816, 819. Summary courts martial require only one panel member, may impose only minimal sentences, and may be objected to by the accused, who may then received trial by either special or general court martial Id. at 816, 820.

22 To suggest that such new tribunals should be less protective of the accused than are special and summary courts martial is to push the floor of protection quite low indeed. The dearth of procedural protections available at that floor is especially stark when compared with what is available in other jurisdictions. For instance, the Northern Ireland (Emergency Provisions) Act, 1996, permits trial of terrorists by a three-judge appellate tribunal, and specifies the full panoply of rights and procedures available. Of more immediate import are the procedures, including civilian appeal, available to United States military personnel in a court martial. See 10 U.S.C. 801 et. seq.

courts-martial. . .have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war." 10 U.S.C. §818. General courts-martial are, as noted, comprised of five judges. One of these must be a military judge-unless the defendant waives this requirement. 10 U.S.C. §816. At least one trained lawyer sits on the court, 10 U.S.C. §826, and, absent exigencies of war, the accused is entitled to counsel to defend him, §827; to know the charges proffered against him, §830; to be free from compulsory self-incrimination, §831; and to conduct a limited investigation of the facts surrounding the charge, § 832.

7. A court martial also provides heightened protection for more serious charges. Section 852 of the UCMJ ensures that a defendant may be convicted of a crime punishable by death only where the commission's vote is unanimous. Any death sentence must be unanimous as well. While this would no doubt limit the number of death sentences that could be imposed-and the number of convictions that could be obtained in cases where that penalty was sought-if the military tribunals now being established were to follow the court martial model, the prosecution could keep the overall conviction rate from falling much by seeking a life sentence, and from falling at all by seeking a term of years less than life, which requires the same twothirds vote that the November 13 Order would require. See § 4(c)(6).

8. Suggestions that military tribunals must, either as a matter of constitutional necessity or as a matter of sound international diplomacy, follow evidentiary rules and burden-of-proof rules fully as onerous to the prosecution, and protective of the accused, as apply in ordinary criminal trials and in courts martial, have much to commend them, but Congress may properly keep in mind that at least some of those rules are designed mostly to protect lay jurors from being unduly impressed by categories of evidence whose reliability those inexperienced in such matters may overestimate, or unduly swayed by emotional appeals for vengeance, and that the need for such rules may be correspondingly reduced when trained professionals are the finders of fact and law.

In addition, the classic requirement of proof beyond a reasonable doubt is chosen to reflect the old adage that it is better to free 100 guilty men than to imprison, much less execute, one innocent-a calculus that neither the Constitution, nor conventional morality, necessarily imposes on government when the 100 guilty who are freed belong to terrorist cells that slaughter innocent civilians, and may well have access to chemical, biological, or even nuclear weapons. Due process has been held, for example, to permit incarceration of potentially indefinite duration of those found, upon proof by less than the "beyond reasonable doubt" standard, to pose a grave danger to the safety of others. See Addington v. Texas, 441 U.S. 418, 424–29 (1979) ("clear and convincing" evidence standard held constitutional). To be sure, there is a very significant difference between involuntary civil commitment or quarantine of someone deemed dangerous to the public for reasons that entail no moral opprobrium and imprisonment or, most extreme of all, execution, of someone convicted as a war criminal. But in a legal universe where the option of permanent incarceration as a "probable once and future terrorist" is non-existent, to put decisive weight on the moral valence of the "war criminal" label may mean violating the maxim that our Constitution is not a suicide pact. For proof beyond a reasonable doubt-using those words in their criminal law sense and not with a wink-may be too much ever to expect in at least some categories of terrorism cases where intrinsic difficulties of gathering and presenting the needed evidence, particularly if the hearsay rule and other somewhat artificial obstacles are interposed, would predictably lead to the release of individuals likely to cause the avoidable loss of far more innocent life than would result from a somewhat softer standard of proof.

9. Congress should also ensure that an accuser not be given the final word as the court of last resort in the appeal of a conviction or sentence that the accuser obtained in his role as prosecutor or as the prosecutor's ultimate superior—a power currently granted the President by his Military Order. See § 4(c)(8) (trial record submitted for President's "review and final decision"). It has been an axiom of AngloAmerican law for nearly four centuries that a "person cannot be judge in his own cause," Dr. Bonham's Case, 8 Co. 114a, 118a (1610), a principle applicable to appellate no less than trial judges. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821-25 (1986). The fact that no appeal at all is constitutionally mandated from a criminal conviction rendered by a civil court, McKane v. Durston, 153 U.S. 684 (1894), has never been taken to imply that an "appeal" to the chief prosecutor himself can satisfy due process where the judgment appealed from was rendered by a body "whose personnel are in. . .the executive chain of command," Reid v. Covert, 354 U.S. 2, 36 (1957), as is true of courts martial, Id., and of any other military tribunal drawn exclusively from the President's military subordinates.

Unless Congress opts for the novel alternative of having one or more members of each military tribunal drawn from the Article III judiciary-as Congress did in setting up the U.S. Sentencing Commission, see Mistretta v. United Sates, 488 U.S. 361 (1989), and in creating the panel charged with the task of appointing the independent counsels, see Morrison v. Olsen, 487 U.S. 654 (1988)—it follows that Congress must probably guarantee an expedited appeal to some entity independent of the executive branch, such as the Court of Appeals for the Armed Forces. Ultimate discretionary review by the Supreme Court on writ of certioraris would be an optional feature in such an arrangement. Whatever system of appeals is provided, it seems plain that, if considerations of national security or witness protection so require, Congress could provide that any appeal to a body independent of the President be conducted as a closed proceeding, with the record of the appeal to be kept confidential.

10. Although the UCMJ provides a useful model, the power to set out procedures in the first instance might instead be delegated to the Department of Defense, provided that, within a specified time before such procedural regulations go into effect, they are reported to Congress. Such a mandatory waiting period would give Congress an opportunity to reject or amend the regulations by joint resolution (not, of course, by a mere concurrent resolution, or by a one-house resolution, both prohibited under INS v. Chadha, 462 U.S. 919, 952 (1983)). Indeed, if military commissions or tribunals outside the UCMJ framework are to be as rare an occurrence as the administration insists they are meant to be, Congress might simply decide to require such tribunals to be individually authorized by the President after a statutorily mandated consultation with congressional leadership to explain why existing institutions, including the Article III courts, are inherently insufficient in the circumstances. Such congressional oversight of the President's conduct of this war would draw in part, of course, on the War Powers Resolution of 1973, Pub. L. No. 93-148, 87 Stat. 555 (codified at 50 U.S.C. §§ 1541-1548 (2000)), as precedentsomething to which the Bush administration, which invoked the War Powers Resolution as part of the foundation for the Use of Force Resolution that it proposed to, and obtained from, Congress on September 18, 2001, should have no objection. In any event, Congress would presumably want to require the President or his Secretary of Defense to submit regular periodical reports concerning the proceedings of the military tribunal, and the continued need for their existence.

OVERSIGHT

11. However, Congress could also ensure continued oversight of military tribunals in a variety of ways-for example, by controlling the manner in which the presiding officers are selected. It may require that presiding officers have certain minimum qualifications, and may permit civilians to serve. Alternatively, Congress may require the Secretary of Defense to submit a list of eligible candidates, from which Congress would select presiding officers to serve for a term of years. Congress could also establish procedures for the removal of such officers.

12. In addition, Congress should certainly provide for the "sun setting," or automatic expiration after a relatively few years (three or four would seem prudent), of whatever authorization it enacts for special military tribunals to deal with suspected terrorists, just as was done in the USA-PATRIOT Act, see, § 224, inasmuch as the war being waged against international terrorism, unlike a declared war against a sovereign nation, could go on indefinitely, with no plausible way of declaring it over at any given point.

CONCLUSION

13. Finally, it is worth noting that Congress occupies a privileged position not available to any court that may be asked to decide the constitutional issues arising from these tribunals. For Congress has before it questions concerning the prolonged and secret detention of aliens and the use of what appears to be a form of ethnic, or at least national-origin, profiling in the interrogation of immigrants; challenges to the conceded use of United States citizenship as a reward for providing information that might lead to the breakup of terrorist cells or the apprehension of terrorists; concerns going to possible abuses of prosecutorial discretion; issues regarding the alleged breach of the attorney-client privilege; worries triggered by Department of Justice indications that the FBI, now in a powerful new information-sharing arrangement with foreign intelligence agencies, may be on the verge of resuming practices, happily abandoned decades ago, involving keeping close tabs on, and even planting secret government informants in, political, religious, and civil rights-civil liberties groups; and, of course, all the fears and criticisms triggered by the November 13 Military Tribunal Order.

I believe Congress should seize this historic opportunity to investigate with care but with dispatch, and then to craft an integrated legislative package that protects individual freedoms while permitting, if truly necessary, a form of secure tribunal in which to try suspected war criminals who pose a particularly virulent threat. While I believe such tribunals may well be justifiable in extremely limited circumstances in which, among other things, the laws of war have been violated, we must be clear that facile distinctions between terrorists who kill our people with nefarious schemes incubated in caves located far across the seas, and those who do so by carefully hatching plots in the comfort of our cities, concealing themselves as civilians while they plan monstrous acts of mass murder, are worth very little in the larger scheme of things. Bin Laden, and the leader of the terrorist cell of aliens living in our midst after gaining lawful entry to this country who proceeded to turn our world upside down on September 11, are cut from the same cloth.

We must keep in mind, too, that the vast majority of individuals who may be subjected to scrutiny because of their previous affiliation with or support for terrorist organizations are guilty of at most run of the mill crimes, crimes properly punished in civilian court. We must not make martyrs out of petty criminals. Far better to show our foes that American justice will survive their assault than to sacrifice our core values through hasty overreaction.

This, then, is our Korematsu: the choices we face now-as then-are difficult ones. But I believe that Congress can rise to the occasion, resist the undue consolidation of power within the executive branch, and secure our freedom and our safety alike, requiring no more compromise of our liberty than is genuinely essential—and then only in ways that respect equality. These are the better angels of our nature to whom I bid Congress listen today.

Senator SCHUMER. Thank you, Professor Tribe, for excellent testimony.

Senator Hatch has to leave and wanted to make a final comment, so I am going to give him the prerogative of the ranking member and former chairman role.

Senator HATCH. Well, thank you, Mr. Chairman. I do have to leave, and I want to apologize to your other witnesses, because you are all important to me.

And I want to personally congratulate you, Professor Tribe. We have been together on a lot of occasions, on a lot of issues, and we have conflicted and we have been together as well. Much of what you have said I think is very profound and worthwhile for Congress to listen to.

Mr. TRIBE. Thank you.

Senator HATCH. And I just wanted to personally compliment you on your article in "The New Republic" as well as what you have said here today. I am not sure I agree with every point, but IMr. TRIBE. I would worry if you did, Senator.

Senator HATCH. You should never say anything like that. [Laughter.]

Mr. TRIBE. Well, I think we all have slightly different views.

Senator HATCH. That is right. I am just kidding. But much of what you have said has been very informative, as has Mr. Terwilliger's, and I am sure the rest as well. But it has also been helpful to the Committee, as you always have been. So I just wanted to tell you that.

And apologize to the rest of you, because I respect each and every one of you, and I apologize for having to leave. Thank you. Senator SCHUMER. Thank you, Senator Hatch.

Our next witness is retired Major General Michael Nardotti. He graduated from West Point and from Fordham University School of Law, a native New Yorker as well. He is a decorated combat veteran. He served for over 28 years as a soldier and as a lawyer in the army. Most recently he served as the Judge Advocate General