The American Civil Liberties Union and some national commentators have criticised President Bush's executive order allowing for the exercise of military jurisdiction over those suspected of conducting the September 11th attacks.
Some critics claim the President has the burden of showing that civilian courts are inadequate to the task. Others fear the order threatens civil liberties or is of dubious constitutionality. The critics have it backward.
In confronting the al-Qaeda network, the US is exercising its powers of national defence - its "war powers" - to defend itself against attacks by an organised foreign force. When the country is engaged in such a "state of armed conflict" it has long been recognised under both our constitution and international law that foreign forces are subject to trial by military tribunal for any offences against the laws of war.
It is equally well established that a foreign national who is engaged in armed conflict against the US has no constitutional claim to the rights and procedures which would apply to a domestic criminal case.
The President's decision to provide for military tribunals is well grounded in constitutional law, historical precedent and common sense. His decision will actually preserve our civil liberties by refusing to insist upon their application in a context where their incongruity would lead to their erosion.
There can be no doubt that this country is engaged in an armed conflict against a foreign enemy. Al-Qaeda is a well-organised foreign force which has mounted numerous attacks against the US.
Al-Qaeda members are subject to the laws of war. Their violation of those laws is also clear: they have carried out unprovoked, surprise attacks out of uniform with the clear intent to target unarmed civilians. Their status under international law is that of "unlawful belligerents", and centuries of precedent support trying them before military tribunals.
Since the Revolutionary War (the US War of Independence) the US has used military tribunals to try foreign nationals for offences committed during armed hostilities. After the second World War more than 100 German soldiers were tried and sentenced by US laws of war, including a massacre of US POWs at Malmedy, Belgium.
The most apt precedent is the case of eight Nazi saboteurs. In June 1942, the Germans landed two groups of saboteurs on Long Island and the Florida coast, armed with explosives, US currency and civilian clothing. Their purpose was to attack railroads, bridges and industrial plants to create terror and disrupt the US war machine. Upon their capture, President Roosevelt ordered their trial before a military commission composed of seven US army officers. All eight were convicted and six were executed.
It is a fundamental error of reasoning to take the safeguards which apply in traditional domestic law enforcement and, as the President's critics would, artificially extend them into the realm of an armed conflict against a foreign aggressor.
Imagine a war fought within the strictures of the US criminal justice system. Would a lethal bombing or commando attack on an enemy base have to be predicated upon a finding of probable cause by a judicial officer? Would the president need a wiretap order to justify monitoring enemy communications? Could the president base his decision to attack and kill occupants of the base only upon evidence admissible in a federal court?
The terrorist is waging war against the US, and we are confronting him not to enforce our laws against him but to defeat the security threat he represents. Our body politic is not attempting to discipline an errant member; it is protecting itself from an external threat to its own safety.
A foreign terrorist's status is not altered by his capture. By raising his hands, he cannot transform himself into a domestic criminal defendant. Nor does the fact that a terrorist is apprehended after successfully infiltrating the US - itself a form of invasion - in any way change his status or transform his actions into a purely domestic criminal matter.
The terrorist's physical location is constitutionally irrelevant. Nothing in our constitution or laws accords such unlawful belligerents rights beyond a military trial. An army ranger need not read a captured terrorist his Miranda rights.
By candidly recognising that our response to al-Qaeda is a matter of national defence, the President in fact has taken an important step to preserve our domestic civil liberties.
William Barr is a former US attorney general. Andrew McBride is a former assistant to the attorney general and a former federal prosecutor in the Eastern District of Virginia. This commentary first appeared in the Washington Post