06 December 2001

Professor Tribe's Latest

Harvard law professor Laurence Tribe has written a "great" piece on military tribunals for the current issue of The New Republic.

I call it "great" not because it breaks new legal ground in the area of war powers and the relationship between the executive and legislative branches. That's a fascinating area of constitutional law that this article does not delve into deeply. Indeed, those reading carefully for any argument against Bush's military tribunals on strictly constitutional grounds are in for a disappointment. Nevertheless, that hasn't deterred a fair number of bloggers from linking to Tribe's article with the implication that the great liberal constitutional lawyer has somehow smacked down President Bush legally. In reality, Tribe has proferred a political argument against tribunals, has gone to great lengths to point out he is not calling them unconstitutional, and has been cited by all sorts of people who were already making political arguments against tribunals (not to mention a few who argue for them). That's funny.

The manner in which Tribe begins is enough to get the anti-tribunal crowd excited, for he calls Bush's enabling executive order "flawed." Not unconstitutional, but flawed. Then he suggests in paragraph 2 that the orders might be "mended." He nominates Congress to be the mender (paragraphs 2 & 3) because -- and this is a good judicial activist at work -- the Supreme Court would not likely produce Tribe's preferred political outcome, and might even legitimate what he considers a bad political outcome (paragraphs 2, 3-9).

In paragraph 10, he finally considers the constitutionality of Bush's executive order:

That said, there remains the fundamental question of whether the core of the executive order, its gratuitous branches pruned, is consistent with the Constitution. I think it may well be.

Professor Tribe is basically admitting that the order is constitutional, and goes on in
paragraphs 10-15 to flesh out that admission (though paragraph 15 strays from legal back to political considerations, and is an argument seemingly in favor of tribunals).

In paragraph 16, Professor Tribe urges Congress to consider using civilian tribunals (never mind that he hasn't really established that Congress has the Constitutional prerogative to do so -- the really interesting question), but then cautions that the presumed benefit of civilian tribunals "doesn't mean the Constitution makes civilian courts mandatory in this wartime context." So, again, Professor Tribe admits there is no constitutional bar to the military tribunals or constitutional requirement for civilian tribunals in their place.

The first half (italicized) of paragraph 17 (reproduced entirely) represents his conclusion, and is worth parsing:

In sum, President Bush's order establishing military tribunals goes too far. It should be cut back by Congress, which must not pass the buck to a Supreme Court that is unlikely, if history is our guide, to vindicate constitutional principles in this setting. But this is not to suggest that those tribunals, at their core, offend any fundamental constitutional precept. Congress, and all of us as citizens, must try to view such tribunals, and each related measure the government takes, in their totality--lest by imperceptible steps we gradually make ourselves into an alarmingly different kind of society. But as we resist measures that make us no better than those we seek to disarm and defeat, we must not bind ourselves too tightly to a mast suited only for navigating peaceful seas.

Thus, Professor Tribe brings us back to where he started. Bush's order is flawed in that it "goes too far" (sentence 1). Congress should trim the order (even though its authority to do so is not established, so far as I can tell, in Tribe's article), and Congress should do so because the Court is unlikely to trim the order and thereby "vindicate constitutional principles" (sentence two). But tribunals, "at their core" do not "offend any fundamental constituitonal precept." (sentence three).

Now, since Professor Tribe in sentence 3 again emphasizes that he is not saying that tribunals are unconstitutional, I am somewhat at a loss as to what he means in sentence two when he suggests that the Supreme Court is unlikely to "vindicate constitutional principles" (yeah yeah, paragraphs 6 & 7 purport to treat the topic, but if there is no actual constitutional violation -- something Tribe admits -- then I don't know how we GET to the situations described in those paragraphs). Isn't he really saying, as above, that the Court is unlikely to reach his preferred political outcome? That's the only way I can read sentence two and sentence three together.

This is really a strange piece of writing because of the inherent contradictions (or, if that is too strong, ambiguities), and I don't think it's Tribe's best work. There is something in it both for proponents and opponents of military tribunals, but there is precious little discussion of the salient constitutional issues (i.e. if military tribunals are not unconstitutional on their face, then to what extent can Congress trim the power of the Commander in Chief to execute those tribunals in wartime, which Tribe advocates? And might that raise broader War Powers questions that most liberals would rather not see the Rehnquist Court address?). Indeed, I've seen this article blogged by both proponents of military tribunals and opponents of military tribunals, and I've seen it described as "great" more than once. I suppose if one is looking for an authority to support one's personal political preference on tribunals, it's "great." But it begins to look less great when parsed carefully. Tribe's analysis is usually much tighter and better written than this (and this admission is coming from someone who often disagrees with him).

It does raise interesting questions about the blogging community, however. Because this article can be cited by both the anti-tribunal and pro-tribunal crowd (and I will admit linking to it, for fun, with a pro-tribunal headline after seeing several anti-tribunal bloggers describe it as "great"), shouldn't that have raised some suspicion among bloggers that the article merited a closer read? That perhaps it isn't "great" (or that perhaps it is, since one could argue Tribe's authoritative legal reputation remains intact in both camps)? That perhaps we bloggers can be just as ideological -- perhaps moreso -- than the "traditional" media that some among us often criticize on those grounds?

Or maybe critical reading skills are just declining everywhere. Beats me.

[Posted @ 12:23 AM CST]