When President Bush signed an executive order on November 13 that authorized the trial of non-U.S. citizens on charges of terrorism before special military tribunals, the response from the political right was almost—though not quite—unanimously supportive. Not only did the attorney general himself enthusiastically defend the tribunals, so did such luminaries as the conservative movement’s perennial expert on constitutional and legal questions, Judge Robert Bork (in National Review), as well as such odd bedfellows as the Weekly Standard and Pat Buchanan. Not all on the right went along with the President’s order, however. Somewhat surprisingly, dissent issued from the pen of New York Times columnist William Safire and the editorial page of the Washington Times, which, on the day after Attorney General John Ashcroft’s inept efforts to defend the tribunals before the Senate Judiciary Committee, remarked that “the administration has failed thus far to make the case for military tribunals and keeping detainees’ names secret.”
These responses from what remains of the American “right” are interesting, if only because they disclose what may be some evolving philosophical fault lines that cut across the usual boundaries of paleoconservative and neoconservative. Adherents to neoconservatism might be expected to support the tribunals simply because the ideological fetish of “national security” is so all-devouring among them, and the principal case for the tribunals seemed to rest on the purported national security needs of the federal government in a time of war and crisis. The neocon enthusiasm for the “war against terrorism,” and especially for expanding it to just about every Muslim and Arabic state on the map, extended well beyond the foreign military and diplomatic involvements that war brings. It also encompassed the less obvious (to some, at least) but no less necessary augmentations of state power that the American Civil War, World War I, and World War II engendered, and the vision of the proponents of Big Government conservatism managing the expanded warfare state was itself sufficient for neoconservatives to justify secret military trials of Arab terrorists. Given the militantly pro-Zionist and anti-Arab proclivities of the neocons, most did not have to reach very far. Nevertheless, some—Safire and the Washington Times editorial page—were able to restrain such inclinations and preserve a skeptical distance from the administration’s proposals.
Admittedly, the neocons who offered defenses of the tribunals proved to be considerably more adept than either the President or the attorney general. The President’s first line of defense, proffered the same day he issued the order, was that “mass deaths, mass injuries and massive destruction of property” from terrorism could “place at risk the continuity of the operations of the United States government,” and it was, therefore, “not practicable” to require trials for terrorist suspects in accordance with the “principles of law and rules of evidence” that apply in ordinary courts. Two weeks later, when controversy about the tribunals was rising, he repeated much the same appeal to necessity, telling a group of U.S. attorneys that
Noncitizens, non-U.S. citizens who plan and/or commit mass murder are more than criminal suspects. They are unlawful combatants who seek to destroy our country and our way of life. And if I determine that it is in the national security interest of our great land to try by military commission those who make war on America, then we will do so.
Mr. Ashcroft, appearing before the Senate Judiciary Committee on December 6, did little more than invoke the President’s “power as commander in chief,” declare that he would not divulge information that might threaten national security, and generally insult both members of the committee and the public who had dared express reservations about the secret tribunals by claiming that virtually anyone who raised such questions was aiding the terrorists. “To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists.” This line of counteraccusation was repeated by the neoconservatives, who denounced what the Weekly Standard called the “Crybaby Left,” and by Human Events, which went so far as to run a lead story calling Judiciary Committee Chairman Sen. Patrick Leahy, one of the main critics of the tribunals, “Osama’s Enabler in Congress.” The idea that secret military courts—answerable only to the secretary of defense and the President, able to convict people outside the ordinary rules of evidence, and empowered to hand down death sentences—might represent a danger to liberty was dismissed out of hand by most neoconservatives and the mainstream conservative movement alike.
To be sure, there were better apologies besides the transparently lame ones offered by President Bush and Attorney General Ashcroft. One such, invoked both by Judge Bork and White House Counsel Alberto Gonzales, was that the tribunals were needed to spare civilian jurors and court officials the dangers and intimidation that terrorists might inflict on them if the trials of the terrorists’ comrades were held in public. Another was that, by allowing for secrecy, the tribunals made the use of classified information possible. In ordinary courts, such secrets could not be disclosed to juries made up of civilians without the proper security clearances.
But neither reason is valid. Throughout American history, gangsters like Al Capone and cult killers like Charles Manson have faced trials in public courts and been convicted, sentenced, and punished without any significant intimidation of juries or courts. Indeed, trials of terrorists like Timothy McVeigh and those involved in the World Trade Center bombing of 1993 have also been held without mishap. There is no reason to suppose that trying Al Qaeda suspects publicly would be any more dangerous, and if such threats did appear, they could be dealt with as necessary.
As for the argument about the need for secrecy, classified information, if relevant to the cases being tried, would still have to be divulged to the tribunals and, presumably, to the defendants themselves and their lawyers. The military officers who make up the tribunals may not be any more trustworthy than civilian jurors and probably will not hold the high-level security clearances (above Top Secret) needed to be entrusted with classified information about sources and methods of intelligence collection, though they might be in a better position to understand the significance of such secrets. Disclosing such information to the defendants and their lawyers—if they are allowed to put up any defense for themselves—would be far more of a security risk than disclosing it to any American citizen.
Mr. Gonzales and others also argued that the military tribunals, unlike ordinary courts, will be able to “consider the broadest range of relevant evidence to reach their verdicts.” In other words, they will not be bound by the rules of evidence that govern what is admitted into regular courts of law. The most obvious way to construe this argument is that the government knows it lacks the evidence under ordinary rules to convict those it wants to convict and, therefore, has to set up new rules. The procedure is hardly consistent with elementary notions of justice (which demand certain and established rules for determining what is true), but it also raises the question of how the lawyers and court officials involved in the tribunals could possibly be trained to deal with whatever new “rules of evidence” are adopted.
Not unexpectedly, Judge Bork came up with some of the more intriguing defenses, especially with regard to precedents both historical and constitutional. Most of the defenders of the tribunals, including the Bush administration, cited the case of German saboteurs captured in 1942 who were tried and executed by military tribunals established by Franklin D. Roosevelt. The procedure was upheld in a Supreme Court case, Ex parte Quirin (1942), that Judge Bork invoked. But the case of the German saboteurs occurred during a constitutionally declared war and involved enemy agents who had entered the United States out of uniform for the express purpose of committing acts of war. Under traditionally accepted rules of war, it is permissible to shoot such enemy personnel when captured behind the lines. Much of the argument of Quirin seems to have revolved around these elements of the case. It is not clear that the ruling applies to civilians who, in what is still legally peacetime, committed (or were accomplices of those who committed) what, under the law, remain the ordinary criminal offenses of hijacking and murder, regardless of how atrocious the offenses were or how many victims they claimed. In any case, some of the German saboteurs were American citizens, and the court—perhaps ominously—held that this was irrelevant. The current tribunals apply only to noncitizens, although, as Judge Bork argued, they could (and, in his mind, should) apply to Americans citizens as well.
Defenders of the tribunals pointed to several precedents in U.S. history for similar procedures. Judge Bork noted that “George Washington employed such tribunals freely,” though he also acknowledged that this was before the Constitution had been written (a detail that would seem to render Washington’s practice irrelevant), and that Abraham Lincoln had done the same during the Civil War. Lincoln did indeed, and the Supreme Court, in Ex parte Milligan (1866), held that military tribunals for civilians are not permissible in areas where civil courts remain open. Indeed, Justice David Davis wrote that the Constitution is not suspended in time of emergency and that it remains “a law for rulers and people, equally in time of war and peace,” a ruling that would seem unequivocally to strike down what the Bush administration has in mind. Understandably, Judge Bork neglected to mention the Milligan case.
Yet another historical precedent sometimes cited for the tribunals was the trial (if that is the word for it) of those implicated (as well as some not implicated) in the assassination of Abraham Lincoln. In fact, the trial of the Lincoln assassins shows exactly what is wrong with military tribunals. Eight defendants were tried (Jefferson Davis and other Confederate leaders were named as accomplices), and not one of them escaped punishment. Mrs. Mary Suratt, mother of one of John Wilkes Booth’s alleged accomplices and owner of the boarding house where some of the conspirators lived and plotted, was hanged. She was almost certainly innocent, and one of the other three defendants convicted and executed was probably not mentally competent to stand trial. Dr. Samuel Mudd, who set Booth’s broken leg after the assassination without knowing who Booth was or what he had done (and wound up serving four years in a military prison because of it), was also innocent. Two other men sentenced to life imprisonment had aided Booth in earlier plots to kidnap Lincoln but had nothing to do with the actual assassination, and one of them died in prison two years later. The eighth defendant, sentenced to a six-year prison term but released with Mudd and the surviving prisoner in 1869, might actually have been involved in Booth’s plot. Throughout the trial, the defendants were kept in chains while in the courtroom—and in solitary confinement while out of it—and were not allowed to communicate with anyone without the approval of Secretary of War Edwin Stanton, who planned and authorized the proceedings. Stanton wanted the trial to be held in secret so evidence implicating Confederate leaders could be developed, but Gen. Ulysses S. Grant, pressured by reporters, was instrumental in opening the trial to the public. Far from being a reputable “precedent” for much of anything, the trial of the Lincoln “assassins” (the real assassin—Booth—had been dead for quite a while by the time of the trial) was one of the great miscarriages of justice in American history.
The disregard for the elementary rights of the defendants in the case of the alleged Lincoln assassins illustrates why military tribunals are not generally a good idea. Indeed, one of the problems with the whole concept is that they confuse different governmental functions. In the first place, the tribunals confuse military expertise with justice. There is no reason to think that either the military officers who will act as the magistrates of such tribunals or the secretary of defense who is supposed to be the only authority permitted to review the trials will possess the slightest legal training or knowledge. Military personnel are not trained to enforce or administer the law, which is why, in the United States, they normally do not. Similarly, the tribunals confuse the functions of war and law enforcement, so that men who would ordinarily be considered criminals are now considered to be prisoners of war, even though no war has been formally declared. Criminals and enemy soldiers are not the same thing. Defenders of the Bush tribunals often cite the President’s allegedly inherent power as Commander in Chief to deal with POWs as he sees fit, but even if he has such power, those who would face the tribunals he created do not belong in that category: POWs are not usually put on trial.
One of the major problems with the tribunals is that there is no need for them at all. Whatever the disruptions caused to American life by the events of September 11, the courts and the government are conducting business as usual. Absolutely nothing has happened to “place at risk the continuity of the operations of the United States government” or to render trying alleged terrorists before ordinary courts “not practicable.” In fact, if any large numbers of suspects are going to be tried and convicted, it would be well for the American public (not to mention the people of other nations, especially in the Arabic world) to observe the trials to determine whether the suspects are really guilty. If very many defendants wind up facing death sentences because military tribunals, held in secret and operating by rules of evidence and procedure unknown to ordinary justice, convicted and sentenced them, the nation could be facing a bitterly divisive legacy for decades within and without its boundaries.
The defendants before the tribunals are supposed to be either people accused of involvement in terrorism residing abroad (especially in Afghanistan) or, in some cases, living in the United States, though not citizens. But as Judge Bork wrote,
If there is a problem with Bush’s order, it is the exemption of U.S. citizens from trials before military tribunals. Quirin held that Americans can be tried there, and it is clear that they should. The trial of American terrorists in criminal court would pose all the problems of trying foreign terrorists there: The prosecution would have to choose between safeguarding our intelligence capacity and trying the terrorist. The terrorist could well go free.
That, of course, is a possibility. Guilty men sometimes do get off, and that is regrettable; it is, however, unheard of in the Anglo-American legal tradition to advocate irregular judicial procedures to prevent it from happening. The cliché is that it is better for a hundred guilty men to go free than for one innocent man to hang. It is also unheard of—even among most defenders of the Bush order—to advocate the trial of American citizens before such tribunals. Edwin Stanton seems to have a worthy successor in Judge Bork. The underlying problem with the tribunals is precisely that they might be used against American citizens or serve as a precedent for such use. Administration officials from the President and attorney general on down have steadfastly denied that they will be. Now comes Judge Bork to demand that they should be. Here, again, is exactly what is wrong with military tribunals. They can easily be used for purposes other than those for which they have been established, to the point that regular courts and their procedures could become functionless.
The problem is not mainly that military tribunals may help hang or shoot a few Arabs who may not have been involved in terrorism or that they might deny guilty terrorists due process or violate any “rights” that foreign suspects might be supposed to possess under a Constitution to which they have never owed any allegiance. Indeed, if there is really compelling proof of a foreign suspect’s involvement in terrorism, it ought to be perfectly legitimate to shoot him on sight, without any trial at all. Doing so might be outside the law, but if we really are at war, the law does not necessarily pertain, and the U.S. government has mounted deliberate assassinations during wartime before. The advantage of using extralegal assassinations against known enemies of the country is that it preserves the legal system from the very kind of corruption with which President Bush’s military tribunals threaten to infect it.
Like so much else that is happening today, the creation of military tribunals serves to acclimatize the American public to the erosion of civil liberties and the rule of law. It is not what the secret military courts may do to real terrorists that is worrisome—especially to “conservatives” who claim to defend the rule of law and the Constitution—but the habits of servitude that these and similar measures, adopted with all the pompous invocation of “national security” and patriotism, may easily induce in a population already largely indifferent to the heritage of liberty under law that is being abandoned, as well as the prospect of outright autocracy deriving from the claim that the President alone may decide who is a threat to national security and how he shall be tried. That is exactly what President Bush’s statement—“And if I determine that it is in the national security interest of our great land to try by military commission those who make war on America, then we will do so”—implies.
Terrorism, crime, and war all come and go. Republican liberty and the institutions and habits that sustain it can survive those dangers easily enough. What they cannot survive is their own subversion by those who appeal to patriotism and the “necessity” that war always imposes as justifications for state powers unknown to and unrestrained by law and tradition.