- The Washington Times - Wednesday, November 28, 2001

Next move for Montgomery County outlaw fireplaces

So Montgomery County passed an ordinance that fines a homeowner if a neighbor is offended by a whiff of cigarette smoke ("What was the council smoking?" Editorials, Nov. 26).
To be consistent, the county should also ban the burning of wood in fireplaces without appropriate pollution-control equipment. Wood smoke, which spews high concentrations of particulates and aromatic hydrocarbons (and worse) into the environment, certainly poses a greater health risk than second-hand cigarette smoke escaping from houses.
Outdoor barbecuing should be next on the list. Let's see if the Montgomery County Council will bite that bullet.

Science and Environmental Policy Project

Article places Mormon figure in bad company

The Nov. 23 front-page article "Mystery, martyrdom beckon bin Laden" postulates that if death becomes inevitable Osama bin Laden may have his body destroyed, disappearing completely, a tactic that would strengthen his radical ideas and his following. The article even speculates that this could elevate bin Laden to the level of a "messiah," and his followers would await his resurrection. That may well be true.
Also in the article, however, Emory University Professor Gary Laderman compares the possible martyrdom of bin Laden to the martyrdom of Joseph Smith, the "founder" of the Church of Jesus Christ of Latter-day Saints (the Mormons). Among the other figures used to assess the martyrdom of bin Laden are evildoers such as Adolf Hitler and Ernesto "Che" Guevara. Including Smith in these ranks is outrageous.
In addition, comparing the martyrdom of Smith with the possible martyrdom of bin Laden creates a false impression about the beliefs of members of the Church of Jesus Christ of Latter-day Saints. The members of the Church of Jesus Christ of Latter-day Saints (11 million at present) and all of our fellow Christians look forward to the Second Coming of our Lord and Savior Jesus Christ, not Joseph Smith.
Are Roman Catholics awaiting the resurrection of St. Peter? Are Lutherans looking forward to the resurrection of Martin Luther? Are Presbyterians awaiting the return of John Knox? It would behoove you not to publish articles that compare a peaceful, loving, God-fearing man such as Smith with a terrorist whom some Christians believe is as close to Satan as men come.


'Military commissions' wrong response to September 11

No one who witnessed the September 11 attacks would dispute the imperative to bring those responsible to justice. The president's Nov. 13 executive order authorizing "military commissions" to try noncitizens selectively, however, is not the answer. The order exceeds presidential authority, ignores due process and is unnecessary.
Regarding "enemy combatants" found outside the United States, the U.S. Supreme Court, in "re Yamashita," concluded that the president's power to direct trial by military commission is "without qualification so long as a state of war exists from its declaration until peace is proclaimed." Congress has not declared war on al Qaeda, nor has the president requested such an explicit declaration. Absent the declaration of war required by Yamashita, the president arguably has no constitutional or statutory warrant to employ military commissions.
For those persons lawfully in the United States who have been accused, but are not under arms and, therefore, are not "enemy combatants," military commissions may not be employed where the civilian courts are open and functioning. Supreme Court cases dating from Reconstruction have uniformly and correctly circumscribed authority of military tribunals to try civilians on American soil.
To justify using military commissions, the president and the attorney general frequently cited Franklin D. Roosevelt's use of a secret military commission to try German saboteurs in the United States during World War II. The example, however, is inapt for three reasons: the Germans were military combatants, a state of declared war existed between the two countries and the trial procedures followed in the military commission were the very same as procedures then-applicable to courts-martial for U.S. military personnel.
Subsequently, the Articles of War, under which Roosevelt's military commissions were conducted, have been superceded by Congress' enactment of the Uniform Code of Military Justice in 1951, and notions of military due process have substantially evolved.
The promulgation of summary procedures that deviate from traditional notions of due process and of appropriate commission procedures should be seen as dangerous.
During hearings on the Articles of War and wartime military commissions, the Army judge advocate general clearly articulated to Congress that military commissions and military courts-martial should be governed by identical procedures. Since last employed by Roosevelt, military due process has substantially improved: The accused is entitled to representation by a qualified lawyer, a specially qualified military judge presides over the trial, rules of evidence govern the admission and exclusion of evidence, and military appeals courts review courts-martial, including mandatory review by the U.S. Court of Appeals for the Armed Forces, when an accused is sentenced to death.
The executive order, reliant as it is on outmoded World War II procedures, has not accounted for the substantial evolution of due process and its present application to military courts.
The administration also claims that protection of classified information compels the secrecy requirement and attenuation of basic procedural safeguards provided in federal courts and courts-martial. Such concerns, however, do not mandate the regressive trial procedures described in the order.
Federal courts and military courts-martial both are subject to and employ the Classified Information Procedure Act (CIPA), enacted by Congress with the support of the executive branch. CIPA's purpose is to protect classified "sources and methods" from public disclosure. Military and civilian trials too numerous to count, including the just-completed federal court trials of the terrorists involved in the 1993 World Trade Center bombing, have successfully balanced the need to protect classified information with the requirements of due process for the accused.
Curtailment of due process, where permitted, must be made with surgical precision. We rightly should be skeptical of nonspecific "national security" talismans such as those that provided Roosevelt with the justification to imprison Japanese Americans during World War II and for the secret exposure of soldiers to nuclear blast radiation during the 1950s.
Finally, jerry-built military commissions are unnecessary to successfully prosecute terrorists. If full and fair trials in military courts for combatants found outside of the United States are appropriate, they are appropriate for terrorists within the United States. These courts-martial will not, contrary to what the attorney general recently suggested, be a "spectacle" as long as they provide for: adversarial pre-trial investigation, qualified military judges, rules assuring that only relevant and competent evidence is admitted at trial, public trials consistent with CIPA procedure and judicial review of convictions obtained in those trials. In addition, if the trials are public and conducted pursuant to established law, and if they abide by procedures applied equally to U.S. service personnel and are fair and perceived to be fair, the results will be accepted by world observers as more than "victor's justice."
For noncitizen residents tried pursuant to presidential accusation, federal courts are fully capable of providing justice, as the recent World Trade Center bombing trial demonstrated. Exigency is no reason to abandon the American judicial process.
Further, threatening the rights of a small class of accused U.S. residents threatens the liberty of us all. Thomas Paine observed: "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself."
Congress rightly should exercise its oversight to prohibit employment of military commissions within U.S. borders and require that military trials conducted outside the United States comply with the notions of due process that exist currently in courts-martial.

Middletown, Va.

Charles W. Gittins, a judge advocate and lieutenant colonel in the Marine Corps Reserve, specializes in representing military personnel in courts-martial and other military tribunals.

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