FBA Panel Explores Constitutionality
of Military Tribunals
By Kim Mueller & Kris Burks, Co-Chairs of the FBA Programs Committee

Panelists included constitutional law scholar Leslie Gielow Jacobs, former state special assistant attorney general Tom Gede, and civil rights advocate and renowned trial lawyer James Brosnahan. Brosnahan is counsel for John Walker Lindh, the American detained after being captured with Taliban fighters in Afghanistan.

President Bush authorized the use of military tribunals to try aliens and non-citizen combatants detained and accused of terrorism following the events of September 11. Military tribunals have traditionally been used to try individuals accused of crimes against humanity or violating rules of war. Those tried before such tribunals are not afforded the full array of constitutional rights available to United States citizens.

The panelists examined the legality of such tribunals in the current environment, where there has not been a formal declaration of war, and their effect on the constitutional rights of those accused. Jacobs provided some historical background on tribunals and postulated that, without a declaration of war by Congress, the constitutionality of the tribunals themselves is in question.

Gede, on the other hand, argued that tribunals are constitutional and appropriate under current circumstances, in part based on the heightened need to protect national security. Gede also referred those interested in more detail on his perspective to the White Papers on National Security posted at the Federalist Society web page, www.fed-soc.org, while pointing out that the opinions expressed are those of individual members and not of the society.

Brosnahan spoke from the perspective of a veteran litigator who is now defending a politically unpopular detainee. He asked those in the audience to consider the long-term implications of using tribunals instead of open trials, including the potential "boomerang" effect on Americans detained by hostile governments or movements. Brosnahan also challenged the audience to consider that perhaps the best way to demonstrate the strength of a democracy, and educate doubters about its benefits, is to allow full and open trials of those detained during the Afghani conflict.

The FBA will sponsor four additional programs this year, including an annual dinner in November. The programs are intended to serve the FBA's mission of advancing the science of federal jurisprudence and promoting the welfare, interests, education and professional development of all attorneys involved in federal law.

The next luncheon program will be held on Thursday, April 4, at the Sacramento Club. Professor Michael J. Gerhardt will discuss the judicial confirmation process and provide a status report on judicial appointments in the current patriotic milieu. Gerhardt teaches constitutional law at William & Mary School of Law and is recognized as a leading authority on the federal appointments and impeachment processes. Gerhardt served as a special consultant to the White House Counsel's Office for the Confirmation of Justice Stephen Breyer. If you are interested in attending, please contact Debbie Anderson of Downey, Brand, Seymour & Rohwer at 441-0131.

Non-members are welcome to attend FBA programs. If you are interested in becoming a member of the Federal Bar Association, you can do so by filling out an application on the FBA website, www.fedbar.org.

The 2002 Board Members of the Sacramento Chapter of the FBA are: Matt Powell, Wilke, Fleury, Hoffelt, Gould & Birney, President; Robin Taylor, Office of the United States Attorney, Vice President; Kim Mueller, Law offices of Kim Mueller, Treasurer and Co-Chair of Programs; Tori Griffin, Downey, Brand, Seymour & Rohwer, Secretary; Kris Burks, Mennemeier, Glassman & Stroud, Co-Chair of Programs; and Dave Ditora, Goldsberry Freeman & Swanson, Member at Large.