- The Washington Times - Wednesday, December 5, 2001

The Bush administration says its plan to use military tribunals against terrorists has solid historic precedent, as Attorney General John Ashcroft prepares to defend the plan this week before the Senate Judiciary Committee.
Mr. Ashcroft is expected to face tough questioning from Democrats when he appears before the committee tomorrow, though Senate Majority Leader Tom Daschle, South Dakota Democrat, has signaled that he might be amenable to the tribunal plan.
In a talk show appearance Sunday, Mr. Daschle said, "Clearly there's at least the possibility that something like that might have merit."
One difficulty Democrats face in criticizing the proposal is that the Bush administration is using the example of a Democratic hero, President Franklin D. Roosevelt, to justify the use of military courts.
President Bush's description of Islamic terrorists with the legalistic phrase "unlawful combatants" last week showed how faithfully he tracks the path FDR trod to execute World War II saboteurs.
The phrase which neither president used in their similarly worded orders authorizing military commissions in a speech to federal prosecutors was lifted from the 1942 Supreme Court opinion that upheld FDR's authorization for military officers to try to condemn German civilians caught on a failed mission to sabotage U.S. war production.
Mr. Bush ordered a "military commission" to try conspirators and facilitators of 19 Islamic hijackers who brought down the World Trade Center and severely damaged the Pentagon by ramming the buildings with airliners crowded with passengers, nearly all of whom were civilians.
Mr. Bush's order is restricted to foreigners, but civilian U.S. citizens who violate the rules of war are subject to military justice as well. Among those who have are two of the eight German saboteurs convicted in 1942, and Dr. Samuel A. Mudd, convicted in 1865 as a member of the ring plotting President Lincoln's assassination. One difference, however, is that this time war has not been declared by Congress.
"Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces," the Supreme Court conceded in approving the military's right to hold the eight saboteurs traveling as civilians.
"Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful," the court ruled in refusing the Germans any right to apply for a writ of habeas corpus on grounds their trial was unconstitutional.
The high court ruled the Constitution grants presidents the authority to hold such trials and that Congress had enacted laws to implement that authority. Tribunals set up under military commissions were first used by George Washington during the Revolutionary War, and currently are permitted under Article 21 of the Uniform Code of Military Justice, which also is Title 10 Section 821 of the U.S. Code.
The Senate Judiciary Committee wanted Mr. Ashcroft to testify last week, but he sent Assistant Attorney General Michael Chertoff in his stead reportedly angering some Democrats on the committee.
Mr. Chertoff told the committee that federal courts repeatedly have endorsed the military tribunal concept, and he told the Senate that Mr. Bush will treat with fairness anyone accused.
Mr. Chertoff, head of the Justice Department criminal division, said it was no coincidence that Mr. Bush's order "in many respects is virtually identical" to language in President Roosevelt's July 1942 order and proclamation.
One key difference, he said, is that Mr. Bush "defines a class of defendants" for future and past crimes while Mr. Roosevelt addressed "a specific identifiable set of defendants."
But unlike 1942, when the entire process was done without public notice, the current debate started before anyone even is slated for a military trial over whether terrorists are "combatants" and whether war began September 11. In addition to civil-rights concerns, senators of both parties are unhappy that they were not consulted before the president's executive order was revealed.
Sen. Edward M. Kennedy, Massachusetts Democrat, likened the process to those that U.S. officials criticized for lack of openness and fairness in Peru, Egypt, Sudan, Burma, China, Colombia, Malaysia, Nigeria, Russia and Turkey.
Others, including Sen. Richard J. Durbin, Illinois Democrat, questioned whether the September 11 attacks occurred during a "war" and, if so, whether perpetrators of the 1993 World Trade Center bombing or the 1998 embassy bombings in Africa also could be tried by military courts.
Mr. Chertoff replied: "For those who question whether we are at war, my answer is, bin Laden has declared war on us. They call us the enemy. Under these circumstances, we haven't sought war, but it's been thrust upon us, and it's for us to finish it. I think the law is actually clear [that] there does not need to be a formal declaration of war."
He cited a Civil War case in which the Supreme Court said a conflict "becomes a war by its accidents, the number, power and organization of the persons who originate and carry it on."
Even though the 1942 high court affirmed a D.C. District Court decision barring German saboteurs from filing a writ of habeas corpus, Mr. Chertoff said defendants arrested within the United States who claim their rights were violated could seek Supreme Court review by a writ of habeas corpus.

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