| http://www.denverpost.com/Stories/0,1002,155%257E243420,00.html
What about evidence? By Reggie Rivers Denver Post columnist Thursday, November 29, 2001 - U.S. citizens could be tried in military tribunals. That's not part of President Bush's current executive order - which gives him the power to hand any non-citizen over to the Department of Defense for a quick trial and execution - but the Supreme Court's oft-cited 1942 Quirin decision clearly states that citizens are fair game. Quirin was the World War II case in which the Supreme Court ruled that eight German saboteurs, who entered the United States illegally with illegal weapons, intent on destroying military targets, could be prosecuted in tribunals. According to the international law of war, lawful combatants are soldiers in uniform fighting for their respective militaries, and unlawful combatants are people not in uniform who sneak into the opposing territory to wreak havoc. With regard to unlawful combatants, the Supreme Court's Quirin opinion reads in part: "The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoner of war, but to be offenders against the law of war subject to trial and punishment by military tribunals." The court went on to state that citizenship is no barrier to military commissions. The justices wrote: "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war." It may be easy to support the use of tribunals when they're aimed at non-citizens, whose rights we seem eager to throw away, but what if all of us lost the guarantee of a fair trial? Significantly, the president's order gives him sole authority to decide who is or who is not the enemy. That's a departure from the Quirin decision. In 1942, the question before the court was whether the men should be tried in civilian court or by military tribunal. The government presented a great deal of evidence to prove that the men were indeed enemy agents. The opinion reads: "The following facts appear from the petitions or are stipulated. Except as noted they are undisputed." The justices then begin a recitation of facts, including that all eight men were born in Germany; seven were admittedly members of the German Reich, with which the United States was at war. All attended a sabotage school near Berlin and were instructed in the use of explosives and secret writing. They were delivered to the United States in two submarines. They were wearing German Marine Infantry uniforms carrying explosives, fuses and incendiary and timing devices. Immediately after arriving, they discarded their uniforms, buried their weapons and traveled farther into the country. All received instructions from an officer in the German High Command to destroy war industries and war facilities in the United States. The court ruled that, based on "the admitted facts," the trial of these men was clearly within the jurisdiction of the military commission. Shouldn't that be the model we use now? The government should be required to go to federal court to prove that the suspect is an enemy agent. If the proof is compelling, the court can hand that person over to the department of defense for trial by military tribunal. But, at the very least, shouldn't we require evidence? |
