- The Washington Times - Tuesday, December 11, 2001

Last week's Senate Judiciary Committee oversight hearing of President George Bush's order authorizing military commissions to try

aliens suspected of war crimes and Justice Department law enforcement initiatives should reassure more than alarm.

The Democrat-controlled committee's attacks seemed puny; and, its theatrically selected witnesses performed no better than Tallulah Bankhead in "Cleopatra." According to critic Robert Benchly, the Queen barged down the Nile and sank. On the other hand, Attorney General John Ashcroft, when Lincolnesque statesmanship should be the lodestar, lapsed into a Savonarola or John Knox preaching executive branch infallibility.

Senators or witnesses charged or insinuated that military commissions without congressional authority skated the brink of unconstitutionality or smacked of an imperial presidency. President Bush's executive order allegedly trampled on congressional prerogatives in the trial of war crimes in violation of the Constitution's separation of powers.

But in Ex Parte Quirin (1942), the United States Supreme Court unanimously rejected an identical claim. The justices, moreover, were no reactionary band of Republican appointees. Eight of the nine were Franklin Roosevelt selections; the one centrist justice appointed by President Herbert Hoover, Owen Roberts, climbed to fame prosecuting Republican Teapot Dome villains. Additionally, the court's concern for civil liberties in wartime was demonstrated the following year in holding unconstitutional a compulsory flag salute in public schools. In other words, Ex Parte Quirin cannot be dismissed as a World War II aberration that time and reason have overtaken.

Writing for the court in that case involving the trials of Nazi saboteurs by a military commission summoned by President Roosevelt, Chief Justice Harlan Fiske Stone explained: "An important incident to the conduct of war is the adoption of measures by military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war."

Furthermore, the chief justice emphasized, Congress had endorsed military commissions in various statutes regulating war and the armed forces. One, for example, declared that "the provisions of these articles conferring jurisdiction upon courts martial shall not be construed as depriving military commissions of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions." Another empowered the president to prescribe pretrial, trial and post-trial procedures, including modes of proof, for military commissions. Accordingly, Stone reasoned, Congress had sanctioned military commissions, which had been fixtures in American military practice from the Revolutionary War onward.

The court was untroubled by the declination of Congress to define war crimes by sharp metes and bounds. The chief justice amplified: "Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course."

More than a decade after Ex Parte Quirin, Congress overhauled our system of military justice. But the legislative branch retained undisturbed provisions (now codified at sections 821 and 836 of title 10, U.S. Code) which the Supreme Court had held ratified the constitutionality of military commissions. And in the ensuing half-century, Congress has sung the same constitutional libretto. In other words, President Bush's military commission order fits its congressionally blessed FDR predecessor like a glove. Congress has already approved; and, not a congressional finger was raised by the Senate Judiciary Committee urging revocation of that authorization.

The most tear-stained civil liberties scene was as follows. An alien detained for a minor but admitted immigration law violation enjoyed only 15 minutes per week of telephone time (plus customary face-to-face opportunities) to consult with attorneys or speak to family or friends. Fifteen minutes, however, would seem ample time to communicate plight or maltreatment and uncurtain a legal rescue mission with even prolix or convoluted prose. Committee witnesses further decried immigration or criminal law detentions for illegal conduct that formerly had been either ignored or placed in the caboose of the Justice Department's enforcement priorities. But neither citizen nor alien is crowned with a civil right to transgress nonpriority crimes or prohibitions. Priorities legitimately change with altered circumstances or public policy concerns.

Indeed, a few of the al Qaeda September 11 war criminals, despite their illegal immigration status, had been left to roam at large. Had they been detained, the September 11 horror might have been thwarted or mitigated. In sum, unlike the death mourners for Little Nell in "The Old Curiosity Shop," the Judiciary Committee crowd seemed unweepful over abbreviated telephone access "hardship" born by immigrants lawfully detained.

The American Civil Liberties Union hammered that the FBI's questioning of 5,000 Arab Muslim aliens was unfairly or unconstitutionally coercive.

According to the high-octave organization, the neglect of the Justice Department to provide a handbook enumerating legal tactics that could frustrate investigative or enforcement actions made the interviews involuntary. The ACLU further complained over encouragement of cooperation from interviewees by FBI hinting at lenient treatment in the event they themselves were scofflaws. But that type of reciprocity is a staple of law enforcement generally. Cooperation is routinely invoked to soften punishment or to downgrade the seriousness of a prosecution. And the Supreme Court in Bordenkircher vs. Hayes (1978) even found irreproachable the practice of indicting suspects for greater crimes if they refused to plead guilty to lesser offenses.

In sum, nothing that President Bush or Attorney General Ashcroft have done even nicks our sacred constitutional order. Eternal vigilance, however, is the price of liberty. We should never cease sniffing for government abuses.

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