Hopefully, this will be my last post on this matter, and Merry Christmas to you as well, Mr. Fitzgerald, and all.
I don’t know how I can post about this without writing about a certain legislation that I’ve promised not to mention, but I’m going to try. Because my views against that particular law are well known, it’s worth mentioning a few things that I am compelled to say in favor of it, and the use of military tribunals.
The use of military tribunals in place of the normal justice system has occurred during the Revolution, the Mexican War, the Civil war, and both world wars. Questions remain about the degree to which terrorists-known as “unlawful combatants” in legalese-are entitled to legal protection.
Abraham Lincoln suspended the writ of habeas corpus and authorized such forms to try terrorists because the tribunals could act quickly, gather intelligence through interrogation and keep potentially lifesaving information from becoming public.
Historically, military commissions do not enforce national laws, but a body of law thathas evolved over the centuries, known as the law of war. One of its fundamental axioms is that combatants cannot target civilians.
It is clear that the September 11 terrorists, and al Qaeda detainees, whether apprehended in the United States or abroad, whatever their nationality, are not “legal combatants,” or “POW’s”, due the protection of America’s criminal justice system or those under the international law of war. Terrorists re not members of an organized command structure with someone responsible for their actions; they do not wear military uniforms that would permit the other side to spare civilians without fear of counterattack from disguised fighters; they do not carry arms openly, and they have no respect for the laws of war. Moreover, American courts have been reluctant to second-guess the President on when commissions are justified. During the Lincoln administration the Supreme Court ruled that it had no jurisdiction over a military tribunal.
While Lincoln’s actions during the Civil War may well have gone far afield from the powers of the Executive branch, he had the support of Congress and the people, and the Union and its Constitution survived his actions. The verdict of history-unless one is from Georgia-is that Lincoln’s use of power was not abuse. At the same time that he took audacious steps against lawless rebels, he took equally bold and innovative steps to uphold an expand international law. He commissioned Francis Lieber, a Columbia College law professor, to draft a code of the laws of war. As a result of his efforts, Lieber is considered to be the father of the modern law of armed conflict, and his work became the basis of The Hague and subsequent Geneva conventions. In 1863 Lieber forthrightly advised the President and the Union army that guerillas, spies, and saboteurs-people we call “terrorists”- could be summarily shot.
The prisoners in Guantanamo-no matter their nationality-were captured bearing arms for a terrorist organization. They wear the uniform of no nation’s army. They are, to whit-“illegal combatants,” protected by neither the laws of America nor international law, and subject to the whim and prosecution of military tribunals, historically and legally. Whether their treatment is ethical or moral is not worth arguing.
Jose Padilla,apparently a converted Islamic warrior who was apparently planning to build a dirty bomb, is different. I said “apparently” because it is impossible to actually know to what degree either of these is true. That is the whole problem with doing away with habeas corpus, one of the supporting pillars of the Anglo-American legal tradition. The accused must be brought before the bar of justice; he cannot be chucked into the king’s dungeon to languish indefinitely simply on someone’ say-so.
Padilla’s arrest was announced at an expedient moment-just when investigations into the intelligence failures that resulted in September 11 were beginning to pick up steam-and only then, because he was “about to be turned over to the military.” Later we were told that this American citizen-who bore no arms, killed no one, and had “apparently” committed no crime of substance beyond conspiracy(and stupidity)-was to be considered an “unlawful combatant” and kept in military custody until the war on terror is over.
Turned over to the military. Kept in custody until the war is over. How strange these words sound in the lexicon of our republic. Can a democracy fight a war and still maintain Constitutional principles? I’ve heard many arguments that our present struggle against international terrorism makes open trials unfeasible, and that to have open trials would lead to presentation of evidence, naming of sources and methods, and revealing intelligence that must be protected.
This is contradicted by notable examples from our past, one from another time of crisis and war, when two American spies who served a foe far more formidable than Al Qaeda were convicted in open court of trying to acquire a far more deadly weapon than the one Jose Padilla was supposedly working to put together, The spies in question were Julius and Ethel Rosenberg, who were arrested, tried, convicted and executed at the height of the Cold War and the Korean War for helping to steal the secret of the atomic bomb for the Soviet Union.
It is hard to cite the Rosenberg trial as a good example of anything. The atmosphere the press created, the excessive coaching of witnesses, the flimsiness of the case against Ethel Rosenberg, and a defense so maladroit as top border on malpractice all combined to make this less than the finest moment in American jurisprudence.
Yet, the Rosengbergs got their trial, and today few who have studied their case doubt their guilt. Moreover, they were convicted in good part by classified material on the making of atomic weapons, resented in open court. By sifting carefully through each piece of scientific evidence stolen by the Rosenberg spy ring, the prosecution was able to make its case without compromising nuclear secrets. It was even able to keep secret the so-called Venona cables, the intercepted Soviet messages that had led to the atom spies in the first place. The same could be said for the Wen Ho Lee case, another case where classified material was part of the prosecution’s evidence, and it was heard-mostly-in open court, in another faulty trial.
Flawed trials are one of the inherent risks of a democracy. Secret arrests and military detentions are not., and the moment we change from a government of laws to one of men, we place our existence as a nation in jeopardy. Many here, Mr. Fitzgerald among them, do not believe that George W., Bush or John Ashcroft will ever abuse the powers they have abrogated. I would only ask if they would believe the same of a Bill or Hillary Clinton, a Janet Reno, an Al Gore, or even, dare I say, a Howard Dean?
Last edited by elder999; 19th December 2003 at 18:26.
Aaron J. Cuffee
As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron.
- H.L. Mencken