"Such was the practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars," said the court. In footnotes, it listed numerous cases -- including Maj. John Andre's.
In 2001, after terrorists directed by Osama bin Laden killed 3,000 Americans, Congress authorized the president to use "all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001."
President Bush then ordered that military tribunals be used to try members of Al Qaida charged as unlawful combatants. Among the sources of authority Bush cited for this order were sections 821 and 836 of Title 10 of the U.S. Code. These are the contemporary laws Congress has enacted under Article 1, Section 8, Clause 10 to authorize military tribunals.
After U.S. forces invaded Afghanistan, they took custody of Salih Hamdan. He admitted in an affidavit he was bin Laden's driver. A brief submitted in federal court by the U.S. solicitor general's office alleged Hamdan also served as bin Laden's bodyguard and "was aware during this period that bin Laden and his associates had participated in attacks against U.S. citizens and property, including the Sept. 11 attacks."
President Bush designated Hamdan as eligible for trial by military tribunal, and Hamdan was charged with terrorism-related crimes, including conspiracy to commit attacks on civilians. He appealed in federal court, arguing he deserved to be treated as a prisoner of war under the Geneva Convention and that President Bush lacked the authority to establish military tribunals.
In July, an opinion by the U.S Court of Appeals for the District of Columbia joined by then-appellate Judge John Roberts ruled that Al Qaida is not a party to the Geneva Convention and that Congress had constitutionally authorized military tribunals in the sections of the law cited by President Bush.
As Hamdan's case goes to the Supreme Court, liberals will ignore the law and the Constitution, and argue that a military tribunal is not a fitting instrument of justice for an enlightened society. Yet, if it was fitting for Maj. Andre, it is certainly more than fitting for bin Laden's bodyguard-chauffeur.
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