Monday, November 19, 2001

President Bush has struck a brilliant blow for the nation’s security and for good, old-fashioned common sense in issuing a presidential order allowing military tribunals to try foreigners charged with terrorism.

Predictably, the American Civil Liberties Union has thrown a hissy fit, saying it is “deeply disturbed” by the order and calling on Congress to step in before the “Bill of Rights in America is distorted beyond recognition.” But the truth is that such tribunals have deep roots in American history and jurisprudence, and they are indeed the standard way by which previous administrations have dealt with situations comparable to the one facing us today.

The trouble is that we are so accustomed to seeing criminals who have murdered totally blameless victims give the courts a runaround for 15 or 20 years or escape the consequences of their crimes altogether because their fathers beat them or their lawyers were incompetent that we assume anybody who doesn’t get cut that much slack is being treated unconstitutionally.

But that assumption ignores the tremendous differences between an American citizen, however villainous or even an enemy soldier acting openly under his country’s orders and terrorists who come to this country under false pretenses, melt into American society until their plans mature, and then slaughter thousands of wholly innocent American citizens at the behest of a silent conspiracy in the mountains of Afghanistan.

Do such people deserve a trial by jury, defended by lawyers paid for by the government, and subject to the rules of evidence that apply in our domestic courts? As recently as World War II, when a Nazi submarine put several saboteurs ashore at Amagansett in Long Island, N.Y., with instructions and explosives to destroy the complex of oil refineries and key rail facilities at Newark, N.J., Franklin Roosevelt impaneled a military commission that convicted them after a prompt trial. They were then duly executed, equally promptly.

Or, to go further back, do these terrorists deserve better treatment than the British spy Maj. John Andre, who, during the Revolutionary War, collaborated with the American traitor, Benedict Arnold? Gen. Washington ordered Andre tried by a military commission. He, too, was convicted and duly hanged. There were similar cases in both the Mexican War and the Civil War.

A military tribunal is no kangaroo court. A verdict of guilty, and the penalty (including death), must be supported by two-thirds of the panel’s members. The defendant is entitled to offer a defense and to have legal assistance in doing so. Certain crippling rules of evidence, however notably the hearsay rule and the prohibition against using illegally seized evidence would not apply; under the Bush order, all evidence that would “have probative value to a reasonable person” is admissible. Would that be unbearably unfair to Osama bin Laden’s agents?

As Vice President Richard Cheney explained: “The basic proposition here is that somebody who comes into the United States illegally, who conducts a terrorist operation killing thousands of innocent Americans men, women and children is not a lawful combatant. They don’t deserve to be treated as prisoners of war. They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.”

In addition, although such tribunals could try terrorists captured in the United States, the expectation is that their primary use would be overseas, dealing with terrorists apprehended there.

This new presidential initiative is further evidence of how seriously Mr. Bush takes the war in which America is engaged and how thoughtfully he is dealing with the problems it raises.

William Rusher is a nationally syndicated columnist.

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