November 6, 2001: Justice Department Official Argues that President Has Power to Establish Military Commissions without Congressional Involvement

Patrick Philbin, an attorney with the Justice Department’s Office of Legal Counsel, writes a lengthy and detailed memo arguing that the president may establish so-called “military commissions” for the trial and disposition of terror suspects without involvement in the US criminal justice system. Furthermore, Philbin opines, the president may do so without the approval or even the knowledge of Congress. [US Department of Justice, 11/6/2001 ; American Civil Liberties Union [PDF], 1/28/2009 ] Philbin’s central argument is that 9/11 was an act of war, not a crime, and therefore the attacks triggered the president’s full array of war powers, including the inherent authority to create military commissions. Philbin cites a 1942 case where then-President Roosevelt created a military commission to try eight Nazi saboteurs captured inside the US during the first year of America’s involvement in World War II (see 1942); even though the Supreme Court backed Roosevelt, he felt unsure of the legality of such commissions, and did not use them in later trials of captured saboteurs. Since World War II, the laws of war have undergone drastic revisions, with Congress enacting the Uniform Code of Military Justice (UCMJ), which said that if military commissions were ever to be used again, they should use, as much as is practical, the same procedures and defendant rights as are found in military courts-martial. The Senate had also ratified the 1949 Geneva Conventions, which granted all wartime prisoners the right to a fair trial. Philbin’s memo ignores everything except the 1942 military commissions, and argues that if the president has the inherent and exclusive right to set up military commissions, as the Supreme Court had found, then Congress has no authority to restrict that right. [Savage, 2007, pp. 136-137]