Will Americans End Up Before Secret Military Tribunals?

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.

November 19, 2001