About Secert Military Tribunals
Will Americans End Up Before Secret Military Tribunals?
By Sam Francis
In 1942, two groups of German saboteurs secretly landed on the beaches
of Long Island and Florida with plans to blow up various facilities in the
United States. The spies were captured and, at the special orders of
President Franklin D. Roosevelt, brought before secret military tribunals.
They were convicted and-all but two of them-executed. The other two got life
sentences, and the Supreme Court upheld the whole proceeding.
Last week, in what was supposed to be an emulation of the Roosevelt
precedent, President George W. Bush declared that the United States is now
immersed in such an "extraordinary emergency" that similar secret military
tribunals will try various foreign terrorist suspects who are nabbed either
in this country or abroad. The president himself will decide who is so tried
and who isn't, and the rules of procedure, including standards required for
conviction, will be established by the Secretary of Defense. Some of the
offenses for which defendants will be tried will be capital, and there will
be no judicial review.
The president's decision was defended last week by Attorney General
John Ashcroft, who told the press, "Foreign terrorists who commit war crimes
against the United States, in my judgment, are not entitled to and do not
deserve the protections of the American Constitution, particularly when
there could be very serious and important reasons related to not bringing
them back to the United States for justice." Considered carefully, that is a
profoundly stupid thing for the chief law enforcement official of the
federal government to say.
It's stupid because (a) it presupposes that those being tried by the
tribunals are guilty-an assumption transparently contrary to hundreds of
years of Anglo-American law, which has always assumed that defendants are
innocent until proved guilty; and (b) it misses one of the main purposes of
constitutional protections, which is not merely to protect the rights of the
individual but also to restrain the government itself; hence, it doesn't
matter whether the defendant is foreign or not. What matters is whether the
government-the state-can do whatever it pleases without regard to law and
due process.
And finally it's stupid because (c) Mr. Ashcroft conflates his morally
pretentious appeal to justice (terrorists "do not deserve" constitutional
protections) with a morally flatulent appeal to pragmatic convenience (there
"could be very serious and important reasons" for not providing
constitutional protections) and thereby punctures whatever balloon his
argument from justice inflated. The pragmatic case was in fact made earlier
by the president himself. The pragmatic case is that trying the terrorists
publicly would risk reprisals against jurors and attacks that would endanger
the functioning of the government. It is "not practicable," Mr. Bush
insisted, that the secret courts abide by "the principles of law and the
rules of evidence" that govern every legitimate American court.
Understandably, some folks are objecting to the president's scheme.
Senate Judiciary Committee Chairman Patrick Leahy, for one, complains that
the new procedures could antagonize Europeans who don't like the death
penalty. One supposes that is an objection, but frankly it comes pretty far
down the list.
But the fact is that there is no reason whatsoever to hold such secret
tribunals, and the real objection to them is not Sen. Leahy's flaccid
grumbling but that these courts are one of the most dangerous threats to
constitutional freedom in the last century.
We have held public trials in ordinary courts for terrorists, mass
murderers, international drug pushers, gangsters like Al Capone, and
homicidal maniacs and cult leaders like Charles Manson. None of these
desperadoes or their sidekicks endangered jurors or the functioning of the
government. Indeed, despite what the Supreme Court held in the 1940s, there
was probably no good reason to try the German saboteurs in secret courts,
but even then a legally declared war was going on and the defendants were
clearly enemy agents. The reasons Mr. Bush offers for his secret tribunals
today are without merit.
Nor is Mr. Ashcroft's reasoning any better. Even Nazi war criminals
were considered to deserve public trials under established legal procedures,
despite other irregularities involved in trying them. Even if we do assume
the guilt of those to be hauled before the secret courts, we are opening a
door to hauling others-including Americans-before similar courts in the
future if the president and attorney general imagine that such citizens "do
not deserve the protections of the American Constitution."
Sen. Leahy and other members of Congress (not all Democrats) also
complain that Congress wasn't consulted about the president's decision to
set up these kangaroo courts. They should be happy they weren't and that
their hands so far are clean. What they should do now is take action to stop
Mr. Bush's little lab experiment in tyranny before it can go further.
|