A Symposium on Domestic Terrorism: Values We Can Afford-Protecting Constitutional Rights in an Age of Terrorism: A Response to Crona and Richardson

Daniel M. Filler
21 Okla. City U. L. Rev. 409 (1996)

Article Abstract:
Conjuring images of invisible armies, Spencer Crona and Neal Richardson tap a rich vein of American anxiety. The fear of foreign infiltration and attack is hardly new to the United States. From Jospeh McCarthy's Senate investigation of Communism to the "unsolved" assassination of John F. Kennedy, foreign conspiracy theories surface again and again in the national dialogue. It is international terrorism on American soil. Mining these fears, the authors offer the seemingly reasonable proposal that these suspects be tried before military tribunals. We are at war with terrorists as war criminals. On closer inspection, however, it becomes evident that Crona and Richardson are primarily in favor of declaring war because this will allow the terrorists to be tried without the full panoply of the Constitutional protections. Because the Constitution requires that all defendants tried in civilian court be provided grand juries, juries, and due process rights, the authors see military tribunals as an opportunity to limit these protections legally.

Rather than addressing the Constitutionality of their proposed declaration of partial war against these terrorists, this Essay will focus on the arguments Crona and Richardson offer to Congress in support of their proposal. These arguments are , at a minimum, unconvincing and in some ways deeply troubling., First, this Essay will classify the authors' arguments into two groups: Practical (or utilitarian) claims and moral (or normative) claims. Second, this Essay will discuss why military commissions offer no panacea: they do not guarantee substantial practical benefits in preventing terrorism, vis-à-vis a civilian justice system. Third, this Essay will explain why the assumption underlying Crona's and Richardson's moral claim is particularly disturbing. Finally, this Essay will suggest that if their arguments are accepted, there will be few, if any, limits on Congressional efforts to circumvent the Bill of Rights through tactical use of the war powers clause. If there is a need to change the rules for prosecuting terrorists, these changes should be made in a straightforward way - through Constitutional amendment - rather than by declaring a specious war.

Download the full-text version (adobe PDF) .