Doug: Hi Gautam. I read the first and last article but the second, the one you said you agreed with the most was a broken link, do you have access to it elsewhere?
Me: Hi Doug. The problem with the link is that you have to retype the whole address, not just click on it - that won't work. Sorry. Something funny with Outlook. The URL is: http://www.washingtonpost.com/ac3/ContentServer?articleid=A43719-2001Nov16&p agename=article Sorry about that. More Doug: In the first article it speaks of the 8 German infiltrators you discuss below and there are a few things that differentiate it from the present situation. First, the plot by the Germans was revealed by one of their own, so that there was probably never any real doubt about their guilt. We are presently incarcerating hundreds of people many of them (from what I understand) with little or no evidence of their guilt. To try these people secretly with no checks on whether or not they are being treated fairly goes well beyond the secret trial of a handful of indisputably guilty saboteurs. You also don't note, as the first article does, that the "Supreme Court justices had serious misgivings, but were swayed by pressure from the administration and an emotional private appeal from Justice Felix Frankfurter, who argued that anything but a unanimous verdict in favor of the president would undermine U.S. military morale." Thus their decision may have been based not on it's legal merits, but on the the possible ramifications of basing the case on those same merits. The ends justified the means. Me: Several things, I guess. First, while the Justices certainly had misgivings, their vote was nonetheless unanimous. Heck, I have misgivings - I'm not _enthusiastic_ about this, I just think it's a good and necessary idea. The emotional state of the Justices doesn't have any bearing on the Constitutionality of the tribunal :-) And given the ample precedent - not just in American law but in just about _everyone's_ law - for this use of tribunals, I would argue that, as Bork said, the military tribunals aren't even Constitutionally questionable. They might or might not be _wise_, which is a different question (I think they are) but they're not unconstitutional. There is ample precedent for their use during the Civil War, as well - Ex Parte Quirm is just the most recent (and, in my mind, the most applicable) of the cases. The Geneva Conventions, for example, ratify military tribunals in a situation like this one. We used them extensively after the Second World War, and no one complains about it. Second, the military trials _are reviewable_ by civilian courts - specifically, by the Supreme Court. The Supreme Court denied the German petition for a writ of habeas corpus, but explicitly affirmed (over the wishes of FDR) that it had the right to review the decisions of such a tribunal. Third, military tribunals are not in any way a kangaroo court, as they have been portrayed. A considerable number of the Nuremberg defendants, and many of the German officers tried, got off. There are, in fact, considerable procedural safeguards in military tribunals for the accused. My boss commented to me that it's an accepted point of military law that in courts martial the accused actually has more, not fewer, protections than does the accused in a civilian court. While these are tribunals, not courts martial, the widespread portrayal of these as drumhead trials is a grave injustice and misdescription of what is being planned. Fourth, there are significant safeguards in place to prevent the Bush Administration from using them indiscriminately. Everyone currently held is apparently being held on immigration violations, so they certainly haven't been picked up randomly. If the Bush Administration used these tribunals to prosecute thousands of people, I assure you that I would be in the streets protesting. Anything above 100 or so would raise my suspicions, and I'd want to have a high degree of confidence that these were legitimate prosecutions. Wartime is a difficult situation for everyone (and, incidentally, there is absolutely no legal need for a declaration of war on the part of Congress for the President to assume wartime powers - this was decided during the Jefferson Administration). No system is flawless - in wartime, to a large extent, we have to bestow a very high degree of trust in the Executive Branch. Historically, that trust has been well placed. Despite some egregious violations of civil rights (most notably the internment of Japanese-Americans, of course) the overwhelming trend of American history is that the result of warfare has been _broader_, not narrower, domestic civil rights. This isn't, in my opinion, anything but a matter of necessity. As I believe Oliver Wendell Holmes said, the Constitution is not a suicide pact. We _have_ to make adaptations to new circumstances. Gautam wrote: A large number of lower-ranking German > soldiers were tried by military tribunals, however. Even that, however, was > not at all what I was referring to - I'm sorry I didn't make it more clear. > In 1942 a group of Nazi soldiers (one of whom may have been a citizen of the > United States) were captured in the United States itself attempting to > commit acts of sabotage - terrorism, in other words. Franklin Roosevelt > decided to try them using a military tribunal. They petitioned for writs of > habeas corpus charging that they were not subject to the jurisdiction of > military tribunals. The Supreme Court denied their petition in _Ex parte > Quirin_, holding that they were fully subject to trial by military tribunal. > A friend of mine actually wrote a book about the incident. > > This is actually the exact opposite of moral relativism. That would hold > that the complaints of the terrorists against the United States had some > sort of moral weight - who are we to judge? and similar nonsense. But you are addressing these people we have detained as "the terrorists" when nothing of the sort has been firmly established (as far as I know, anyway). In any case, from my viewpoint you have already tried and convicted them _just by calling them "the terrorists"_. And if these tribunals are conducted in secret, who is to determine the degree of fairness? -- Doug Me: It is my understanding that these tribunals are not, for the most part, meant for any but a small handful of people against whom we have excellent evidence and a pressing need for security. If most of the people currently in captivity are not released in the relatively near future, then I would be exceptionally concerned. At the moment, however, let's be honest - the Bush Administration has not, so far as we can tell, even contemplated civil rights restrictions that would approach those during the Second World War, this despite an internal threat far more real than any faced by Roosevelt. So I would say that I never addressed those people we have detained as terrorists (actually, I have to say that I can't figure out how you got that from my post). One thing we should remember is that civilian trials have _already_ imposed a very real cost upon the government. During the trials for the Nairobi bombings, the government was forced to admit that much of its information came from satellite telephone intercepts. As soon as it admitted that, Bin Laden immediately stopped using his satellite phone. We basically lost track of him at that point...until September 11th. So this isn't a hypothetical cost that the Bush Administration is dealing with - civilian trials would be a phenomenal source of information for Bin Laden and his allies. So, as is usual in war, I'd say that these aren't _perfect_, but that they're a good idea, and they're the best possible solution available given the immense problems inherent in civilian trials for people who are, after all, engaged in armed opposition to the United States. Gautam
