Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs: Re: Swift Justice Authorization Act [April 8, 2002]   [open pdf - 3MB]

This document from the Office of Legal Counsel within the Justice Department addresses proposed legislation that would seek to set military tribunal standards for the President to follow. "This memorandum sets forth the views of the Office of Legal Counsel with regard to legislation Proposed by Senator Patrick Leahy, entitled the Swift Justice Authorization Act ('SJAA'). The proposed legislation purports to vest 1he President with limited authority to order our Armed Forces to detain certain individuals involved in terrorist acts and to establish military commissions to try those individuals for violations of the laws of war. It also specifies procedural requirements that such military tribunals must meet. [...] The legislation suffers from a number of serious constitutional defects. First, the President's authority as Commander in Chief under Article II of the Constitution to engage the Armed Forces in hostile military operations includes the power both to detain enemy combatants and to convene military commissions to punish violators of the laws of War. Legislation expressly granting the President such powers is constitutionally unnecessary. The fundamental premise underpinning the first substantive objective of the legislation - namely, 'authorizing' the President to convene military commissions - is thus mistaken. And to the extent the legislation, by purporting to authorize the President to convene commissions, maybe taken to suggest that the President could not act without such authorization, it raises a serious constitutional issue because it would impermissibly encroach on the President's powers as Commander in Chief."

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