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Military Tribunals

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If it’s the world’s dumbest terrorist you’re looking for, the FBI seems to have nabbed him last summer, when Sept. 11 was still just a day on the calendar. Last week, the man who told flight school instructors that he just wanted to learn to steer an airliner, not to land or take off, found himself facing trial in a public court in Virginia.

The defendant, Zacarias Moussaoui, sometimes described in the press as a “Frenchman” but really about as French as chop suey, may have been the “20th hijacker,” who never managed to hijack anything because he was already in custody when his accomplices went to work. Mr. Moussaoui, the first person in the United States to face trial for what happened on Sept. 11, will not be tried before one of President Bush’s secret military tribunals but in open court, like any other criminal defendant. This is significant.

In explaining the decision by the White House to try the suspect in the normal way, Vice President Dick Cheney may have betrayed the real reasons for the administration’s controversial (and, in my view, legally improper) military tribunals for terrorist suspects. What the vice president told the Washington Times in a telephone interview last week may also serve to discredit the whole notion of the tribunals.

“The decision here clearly was not to move Moussaoui over to the military tribunal, but rather to handle him through the criminal justice system,” Mr. Cheney told the Times in an interview published Dec. 19. “That’s primarily based on an assessment of the case against Moussaoui, and that it can be handled through the normal criminal justice system without compromising sources or methods of intelligence. And there’s a good, strong case against him.” [Bush: Moussaoui will not be tried in military court, Washington Times,Dec 19, 2001]

Well, yes, that’s the point, isn’t it? When there is a “good, strong case” against a suspect, we can try him in the “normal criminal justice system,” using normal and well-recognized rules of evidence, and expect to get a conviction. But when we’re unable to build such a case, using normal and well-recognized rules of evidence, then we throw the suspect before a military tribunal, which can operate in secret and resort to “rules of evidence” unknown to normal courts, and—still—expect to get a conviction.

What the vice president virtually admitted, in other words, is that the real reason for the military tribunals is not, as President Bush claimed when he unveiled them in November, that public and normal courts might not be able to function in the “crisis” that global terrorism has caused or that the jurors and officials of the court might be subject to intimidation or revenge by the terrorist accomplices of the defendants, but simply that the federal government may not have enough real evidence to convict some suspects under normal procedures. Therefore, it’s resorting to irregular procedures for the purpose of getting convictions.

Like certain judges in the Old West, the government is assuring suspects they will certainly receive a fair trial before they are hanged.

As for the need to protect “sources and methods” of intelligence, since when is that a legitimate reason for suspending the normal rules of trial procedure supposedly grounded in the U.S. Constitution? If you can lose your right to a public trial before a jury just because the government doesn’t want to discuss satellite reconnaissance telemetry in open court, then we no longer have a constitutional government at all.

Moreover, we have had plenty of espionage and terrorism cases in the past, and disclosure of “sources and methods” of intelligence has never been a problem. Part of the evidence against the Rosenbergs was derived from deciphered Soviet messages, but that never came out in court. The life sentence Israeli spy Jonathan Pollard received was due in part to the nature of the highly classified information he stole, but what it was exactly has never been publicly disclosed. The blunt truth is that you certainly can hold public trials of spies and terrorists without disclosing important secrets, and even if you couldn’t, that has nothing to do with what kind of procedures are used in the trial.

There is in fact “a good, strong case” against the world’s dumbest terrorist, and there’s every reason to get on with building it before the American and world public so everyone will be convinced Mr. Moussaoui really did what he will probably be convicted of doing.

Not the least of the virtues of public trials is that they have that effect—convincing even those who don’t want to believe in the guilt or innocence of a suspect that he really is one or the other.

The American government will be stronger, and the forces of terrorism weaker, if that’s how we try Mr. Moussaoui’s suspected comrades as well.

• Category: Foreign Policy • Tags: Military Tribunals 
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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.

• Category: Foreign Policy • Tags: Military Tribunals 
Sam Francis
About Sam Francis

Dr. Samuel T. Francis (1947-2005) was a leading paleoconservative columnist and intellectual theorist, serving as an adviser to the presidential campaigns of Patrick Buchanan and as an editorial writer, columnist, and editor at The Washington Times. He received the Distinguished Writing Award for Editorial Writing of the American Society of Newspaper Editors (ASNE) in both 1989 and 1990, while being a finalist for the National Journalism Award (Walker Stone Prize) for Editorial Writing of the Scripps Howard Foundation those same years. His undergraduate education was at Johns Hopkins and he later earned his Ph.D. in modern history at the University of North Carolina at Chapel Hill.

His books include The Soviet Strategy of Terror(1981, rev.1985), Power and History: The Political Thought of James Burnham (1984); Beautiful Losers: Essays on the Failure of American Conservatism (1993); Revolution from the Middle: Essays and Articles from Chronicles, 1989–1996 (1997); and Thinkers of Our Time: James Burnham (1999). His published articles or reviews appeared in The New York Times, USA Today, National Review, The Spectator (London), The New American, The Occidental Quarterly, and Chronicles: A Magazine of American Culture, of which he was political editor and for which he wrote a monthly column, “Principalities and Powers.”