- The Washington Times - Wednesday, August 21, 2002

And now for today's burning legal issue. You decide:Of the estimated 1,200 people swept up after September 11 by the authorities, 74 were still being held on immigration violations, 73 on criminal charges, and most of the rest have been shown the door. Their names were never made public. Should they have been?
A federal judge in D.C. has supplied her own answer to that question: She has ordered the Bush administration to release the names. Even if it may compromise efforts to break up the terrorist network. Because this is America and here we have no secret arrests.
To quote the Hon. Gladys Kessler of the U.S. District Court in D.C.: "The court fully understands and appreciates that the first priority of the executive branch in a time of crisis is to ensure the physical security of its citizens. By the same token, the first priority of the judicial branch must be to ensure that our government always operates within the statutory and constitutional constraints that distinguish a democracy from a dictatorship."
Her Honor makes it sound simple.
It isn't.
Judge Kessler's division of priorities between the executive and judicial branches is too neat for comfort, and for reality. Both must be concerned about national security; both must be concerned about our liberties.
The unavoidable challenge is how to respect basic rights and yet protect the republic from an enemy who would use those rights to undermine it.
One way out of this dilemma is to use military courts. Because civil courts have already demonstrated how to make a mess of this delicate assignment:
In one courtroom, you have Zacarias Moussaoui's own personal circus: He pleads guilty. Judge doesn't accept. He pleads guilty again. Judge says think about it. One day the accused is innocent of all charges, the next he's shouting "Down with America." The trial has had to be postponed 'til next year. Later we'll have lions jump through flaming hoops and assorted clowns.
In another courtroom, Johnny bin Walker Lindh admits to taking up arms against the United States of America, and gets 20 years with time off for good behavior. You would think he had cooked some corporate books or something.
Another American by fortunate accident of birth, Yaser Esam Hamdi, is captured in Afghanistan and transferred to Guantanamo Bay, where it is discovered he was born in this country. Whereupon he's transferred to a Navy brig in Norfolk, Va., and demands a lawyer and everything else that goes with a civil trial.
Will our enemies now begin negotiating their plea bargains as soon as they're captured? Will we have to assign judge advocates to every Army platoon?
Civilian courtrooms should be reserved for trying civilians. Military courts should try combatants. Even unlawful ones. Especially unlawful ones.
What should be done with the prisoners picked up and secretly detained by the FBI, INS and other agencies in the wake of September 11?
This is a new kind of enemy we face and a new legal approach is needed. A civil court should make the decision on a case-by-case basis about which of these detainees the government may hold, in secret, for a limited time. Because to release the name of suspected terrorists might tip off their confederates.
There's a precedent handy: Judges secretly approve wiretaps for Mafia dons. Why not have those same judges supervise the detention of suspected saboteurs, too? Are godfathers any more dangerous than al Qaeda?
By letting authorities keep some arrests secret yet court-supervised, the War Against Terror could go on unimpeded. But judges independent of the prosecutors would have the final say. Such a compromise would protect our civil liberties and our citizens.
There is an art to these matters not unlike prudence. George W. Bush is not the first president to find himself engaged in a war that could determine whether this nation, or any nation so conceived and so dedicated to freedom, can long endure. A president named Abraham Lincoln, criticized for suspending habeas corpus in the midst of a war, responded by asking: Should we allow the entire Constitution to be threatened in order to preserve just one part?
The Supreme Court of that same, wartime era handed down a controlling decision in such cases (Ex Parte Milligan) when it ruled that military tribunals may not sit in judgment on American civilians if civil courts are available. Let it be noted, however, that the court did not make its decision until 1866. By then the war was over and the danger to the Union had safely passed. How prudent.
Robert Jackson, who would become a justice of that same Supreme Court a century later, summed up the matter: The Constitution of the United States, he once noted, is not a suicide pact.

Paul Greenberg is a nationally syndicated columnist.

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