[CTRL] Terror Tribunals

[William Shannon]

http://www.thenewamerican.com/tna/2002/01-14-2002/vo18no01_tribunals.htm Terror Tribunals by William Norman Grigg If President Bush prevails, oppressive "Star Chamber" courts of the past could take on new life as unaccountable military tribunals. Former Supreme Court nominee Robert Bork is unique among defenders of President Bush’s controversial plan to try accused terrorists before special military tribunals. Most defenders of the president’s proposal have emphasized that it limits the use of such tribunals to the trial of foreign nationals accused of being associated with the al-Qaeda terrorist network. Judge Bork, however, points out that the proposed terrorism tribunals could be given the power to try American citizens as well; in fact, he criticizes Bush for not giving them that power right away. "If there is a problem with Bush’s order," writes Bork in National Review, "it is the exemption of U.S. citizens from trials before military tribunals." Citing the Supreme Court’s decision in the 1942 case Ex Parte Quirin, which dealt with the military trial of eight Nazi saboteurs captured in New York, Bork notes: "Quirin held that Americans can be tried there, and it is clear that they should." To buttress this point, Bork refers to the fact that "George Washington used such tribunals freely, as did Abraham Lincoln in the Civil War." He concludes that military tribunals should be considered "well within our tradition. They are needed now more than ever." George Washington’s use of military tribunals is of dubious relevance to our pres-ent circumstances, since it took place before the creation of the U.S. Constitution. The military tribunals created during the Civil War constitute a very ominous precedent in that they tried not only suspected Confederate spies and saboteurs, but also Northern civilians accused of "disloyalty" on the basis of public remarks critical of the federal government. Lincoln claimed that the commander in chief of the American military "could, in time of war … suspend all civil rights, and subject the citizens as well as the soldiers, to the rule of his will, and this could take place if ‘in his opinion, the exigencies of the country demand it, and of which he is to judge....’" If this claim is true, the U.S. Supreme Court ruled in the 1866 case Ex Parte Milligan, then "republican government is a failure, and there is an end of liberty regulated by law.... Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable and, in the conflict, one or the other must perish.... Martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise of their jurisdiction." Thus the High Court ruled that the military tribunals created by the Lincoln administration were unconstitutional. The Supreme Court, under the influence of what Harvard law professor Laurence Tribe calls "some nasty behind-the-scenes arm twisting by the executive," upheld the 1942 trial of Nazi saboteurs by a military tribunal. However, that decision did not validate the idea that a president can create such tribunals on his own initiative, but rather that the president could order a military trial "in the declared exercise of his powers as Commander in Chief of the Army in time of war...." "The Constitution … invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war," wrote Chief Justice Harlan Stone in the unanimous opinion of the Court. The Supreme Court recognized that the president does have statutory authority, under Articles of War established by Congress, to authorize the use of military tribunals to prosecute enemy agents. However, that power — as are all of the powers exercised by the president in his capacity as commander in chief — is contingent upon a congressional mandate and subject to congressional oversight. President, Monarch, or Dictator? Under our Constitution, executive, legislative, and judicial powers are separate, and each branch is intended to check the excesses of the others. Within this system, Congress has the power to define the appellate jurisdiction of all federal courts, and create courts inferior to the Supreme Court. The president can appoint Supreme Court and other federal judges with the advice and consent of the Senate. But no power is given to the president to create courts that answer only to him. One of the specific charges against King George in the Declaration of Independence was that the rogue monarch had perverted the British judicial system by making "Judges dependent on his Will alone" and working to subject the American colonists "to Jurisdiction foreign to our Constitution, and unacknowledged by our Laws...." This complaint tacitly compared King George’s judicial abuses against American colonists to the notorious "Star Chamber" courts — judicial bodies created and controlled by Tudor and early Stuart kings. While the "Star Chamber" courts were praised for their efficiency, in practice they became corrupt vehicles used to impose the king’s will, rather than to apply the law and seek justice. Defenders of the proposed terrorism tribunals insist that they would operate under the same rules of evidence and due process guidelines used in the U.S. military’s criminal justice system. But as outlined in President Bush’s November 13th Military Order, a terrorism tribunal would function much more like a "Star Chamber" court than an American court-martial. The order directs the secretary of defense to create military commissions and to define the regulations under which they will operate. Conviction would not depend upon a finding of "guilty beyond a reasonable doubt," or even a "preponderance of evidence," but rather the presentation of evidence that would "have probative value to a reasonable person." A two-thirds vote of the commissioners present for a trial would be sufficient to uphold a guilty verdict and to impose the death penalty. In court-martial proceedings, by way of contrast, death sentences can only be imposed by a unanimous vote. Court-martial judgments can be appealed both on matters of facts and law, and they fall under the appellate jurisdiction of the Supreme Court. The proposed terrorism tribunals, however, would be insulated from appellate review. President Bush’s order specifies that the tribunals "shall have exclusive jurisdiction with respect to offenses by the [accused] individual" and that those arraigned before them will have no right to appeal to "any court of the United States, or any State thereof...." Instead, upon completion of a trial, convictions and sentences would be sent to the White House for review "by me or by the Secretary of Defense if so designated by me for this purpose." So the president and secretary of defense would not only create these tribunals, appoint the officers who would sit on them, and define the regulations under which they would operate — they would also constitute the only "court of appeal" for both verdicts and sentences. This represents the accumulation of executive, legislative, and judicial powers in the same hands — a situation that James Madison described as "the very definition of tyranny." Defenders of the proposed tribunals may insist that such tyrannical powers are proper and even necessary in dealing with murderous foreign enemies like Osama bin Laden. But tyrannical powers cannot be tidily compartmentalized; once granted, they tend to expand beyond their intended application. This was certainly the case with Civil War-era military commissions, which were originally intended to try Confederate agents, but soon became a major element of what can only be called a federal police-state apparatus. Under Martial Law Joseph Aubuchon, a man otherwise forgotten by history, was the first civilian to be tried by a U.S. military tribunal. A resident of Ironton, Missouri, Aubuchon was one of many citizens of that Civil War-era border state whose loyalties were called into question by military occupation authorities. In September 1861, Aubuchon was arraigned by a military commission and accused of "Treason against the Government of the United States." The charges specified that Aubuchon "did assume an attitude of open rebellion against the Federal Government by taking up arms against the same" as part of a rebel army within the borders of Missouri. After a brief trial in St. Louis, Aubuchon was found guilty of treason and sentenced to a term of hard labor for the duration of the war. But the verdict offered one fascinating twist: It stipulated that the defendant was guilty of everything except "taking up arms" against the United States government. That is, his "treason" did not consist of taking up arms against the government, but of merely displaying "an attitude of open rebellion" against federal authority. As defined by the U.S. Constitution, treason requires the commission of an "overt act" by which a citizen makes war upon the United States, or adheres to our enemies, "giving them aid and comfort." The only adequate evidence to sustain such a charge is the testimony of two witnesses, or a confession in open court. In his book The Fate of Liberty, scholar Mark E. Neely observes that "Aubuchon’s ‘attitude of open rebellion’ did not fit the constitutional definition" of treason. Upon reviewing the case, General John C. Fremont, the military governor of occupied Missouri, released Aubuchon — not because Fremont concluded that the verdict was inherently unjust, but because the supposed offense occurred before the state was placed under martial law. A similar style of "justice" was meted out to Clement Vallandingham, a onetime Democrat Congressman from Ohio. A fervent critic of President Lincoln’s war policies, Vallandingham resolutely promoted a peaceful settlement of the War Between the States. He also delivered numerous incendiary speeches from the House floor condemning the Lincoln administration’s suspension of habeas corpus and its use of military tribunals in Ohio and Maryland. Many of Vallandingham’s essays were published in pro-Democrat, Northern newspapers, until a decree by President Lincoln shut them down. Administration loyalists in the Ohio legislature then gerrymandered the troublesome representative out of his congressional seat, prompting him to run for governor. In an early 1863 speech, Vallandingham proclaimed: "The war is a bloody and costly failure. The dead, the dead, and the numerous dead — think of Fredericksburg. Let us make peace. Let the armies fraternize and go home." That speech roused the ire of Major General Ambrose Burnside, who had recently been appointed military commander of Ohio. The defeat of Northern forces at Fredericksburg did lasting damage to the Union Army’s prestige. The general who presided over the debacle was Ambrose Burnside — and Vallandingham’s speech was an affront to the general’s vanity. Accordingly, on April 13, 1863, Burnside issued Military Order 38, which, historian Charles Adams wrote, was "aimed specifically at Vallandingham." "All persons found without our lines who commit acts for the benefit of enemies of our country will be tried as spies or traitors and, if convicted, will suffer death," the decree stated. During a May 1st speech, Vallandingham tore up a copy of Burnside’s order, declaring: "I have the most supreme contempt for General Order number 38 [and] I have the most supreme contempt for King Lincoln." The reaction to this defiant gesture was swift, severe, and predictable. Soldiers under Burnside’s command rousted Vallandingham after the proverbial "three a.m. knock on the door." Shortly thereafter, the former congressman was arraigned before a nine-member military commission. "In his defense," wrote Adams in his book When in the Course of Human Events, "Vallandingham referred to the Constitution and his right to freely speak and to criticize the government. He even asserted and affirmed his loyalty, stating that he was for the Union, the Constitution, and liberty. The general ordered his confinement in a prison for the duration of the war." William Seward, Lincoln’s secretary of state, was put in charge of "internal security," which Adams describes as "the nineteenth-century equivalent of secret police." In his study Emancipating Slaves, Enslaving Free Men, Professor Jeffrey Rogers Hummel of Golden Gate University describes how Seward presided over a network of police state organs that included "special agents, U.S. marshals, Pinkerton detectives, local police, private informers, and above all, military officials." Verdicts from military commissions offered a patina of propriety to political prosecutions of the Lincoln administration’s critics. Seward, according to one account, boasted of his totalitarian powers in a conversation with the British Ambassador: "I can touch a bell on my right hand and order the arrest of a citizen of Ohio. I can touch a bell again, and order the imprisonment of a citizen of New York, and no power on earth, except that of the President of the United States, can release them. Can the Queen of England do as much?" Let Congress Act Under the Constitution, no president — and certainly no appointed executive branch official — is given such powers to imprison Americans at whim. But if the proposed terrorism tribunals are put into operation, the president and his subordinates would be able to expand their powers and jurisdiction by decree. The Bush administration assures us that the tribunals would, at present, only be used to try foreign nationals associated with the al-Qaeda terrorist network. But the administration has also maintained that the "war on terrorism" will be an open-ended affair that could last for decades. Over the course of such a lengthy conflict, President Bush or his successors would have the option of expanding the tribunals’ jurisdiction to include Americans, and re-defining their mandate to include trials of "anti-government extremists" — the sort of people Attorney General John Ashcroft recently accused of "aiding the terrorists" by criticizing the administration’s policies. The cases of Joseph Aubuchon and Clement Vallandingham demonstrate that such a turn of events is possible. In a detailed review of the constitutional questions raised by the proposed terrorism tribunals, legal scholars David B. Rivkin, Lee A. Casey, and Darin R. Bartram conclude that "a formal declaration of war should be sought before the United States employs military courts to try al-Qaeda members. This would place such tribunals, which clearly represent a departure from this country’s normal legal processes and traditions, on the best possible constitutional basis." This recommendation is sound, but insufficient. A declaration of war is overdue and is a necessary prerequisite to the creation of terrorism tribunals. But in order to meet constitutional requirements, tribunals intended to try foreign terrorist suspects must be created by Congress and made subject to the appellate jurisdiction of the Supreme Court. In his defense of the proposed terrorism tribunals, Judge Bork complains: "Trials in federal courts have features that make them totally inappropriate for the trial of terrorists. Jurors often respond to emotional appeals, and, in any event, have reason to fear for their and their families’ safety if they [vote to convict]. Criminal trials have been adorned by judges with a full panoply of procedural hurdles that guarantee a trial of many months. Appeals and petitions for habeas corpus can take years, and should the death sentence be given, the ACLU has shown how to delay execution for ten years or more through appeals followed by one habeas corpus petition after another." Bork is entirely correct in describing the pitfalls of our present system, which enjoys none of the vaunted efficiency of ancient "Star Chamber" courts or modern totalitarian show trials. Nonetheless, our existing court system did manage to convict several of Osama bin Laden’s minions, who were prosecuted for the 1993 World Trade Center attack and the 1998 bombing of U.S. embassies in Kenya and Tanzania. When the federal government is contemplating the creation of an extra-constitutional court system, there are higher values than efficiency to consider. The Constitution provides adequate means of creating judicial institutions that can prosecute our nation’s enemies without threatening the liberties of American citizens.