Just before dawn on a June morning in 1942, four Nazi saboteurs landed on Long Island, N.Y. They quickly changed from German marine uniforms into civilian clothes and, with supplies of explosives and timing devices, went on the scout to New York City. Four days later, four more saboteurs slipped ashore in Florida. The FBI quickly rounded up all eight. They were tried in military courts and four of them were swiftly hanged. Three decades on, as al Qaeda and their Taliban hosts flee south into the caves of Afghanistan, we face the prospect of dealing once more with captured saboteurs in America. What to do with them is the subject of an executive order signed Nov. 13 by President Bush authorizing, as FDR did in 1942, that such prisoners be tried by special military tribunals.
As tempting as it may be to follow the FDR example, Mr. Bush should not.
Various arguments are advanced in favor of the special tribunes: Captured terrorists pose special problems both here and abroad. Intelligence information that may have led to their capture would be admissible in a normal criminal trial, and making that information available to the terrorists would endanger the lives of the sources of that information. Our civilian courts have no jurisdiction overseas. Can we trust foreign systems of justice to ensure fair trials and fair punishments?
We are meant to be reassured that military tribunals will reach only those who are not American citizens, and who are identified as either current or former members of al Qaeda who have participated in acts against the United States, or those who have aided or abetted al Qaeda’s acts. The executive order empowers the Defense Department to detain, try and punish those people, either in the United States or abroad. But the scope of the order is extraordinarily broad, the legal implications uncertain and the precedent it sets is dangerous indeed.
The U.S. Supreme Court has upheld such tribunals in the past, citing precedent going back to the American Revolution. In Ex Parte Quirin, the 1942 decision upholding FDR’s order, the high court ruled that there are “lawful” and “unlawful” belligerents, and that the latter such as terrorists and saboteurs who are disguised as civilians are not entitled to treatment as prisoners of war.
But this does not make the precedent right this time. We are engaged in a “war on terrorism,” but we are not actually at war, without the quotation marks, because Congress has not declared war. And there are precedents, you might say, for the Supreme Court upsetting its precedents. There are other ways of dealing with terrorists, and it is neither necessary nor right to abandon the spirit and guarantees of our judicial traditions. Battlefield justice, without ceremony, would be quicker, and as just, as the special tribunals.
Mr. Bush’s executive order has brought both right and left together in opposition and disbelief, in concern for American principles and due process. Some of the opposition is fuzzy-headed, such as concern for the vapor of “world opinion.” America must always do what it must do, and “world opinion” will follow. But the concern is real. Rep. Bob Barr of Georgia, a former U.S. district attorney and as staunch in his conservatism as anyone, and the American Civil Liberties Union, the fount of the kind of liberalism that infuriates conservatives, are making common cause this time. Several congressmen, including reliable friends of Mr. Bush, suggest that congressional hearings may be useful to discuss how to deal with terrorist threats to the nation.
Federal law and Senate Joint Resolution 23 give the president the authority to use all necessary military force to respond to the September 11 attacks, and they are all the legal authority the president needed to issue his order. But this should not be taken as an invitation to a display of power. Osama bin Laden and his barbarians are not such supermen that America must stand its respect for its traditions of equality under the law on its head to deliver what the barbarians have coming to them. The president and his men should think again.