My humble opinion on
November 19, 2001
Last Tuesday, President Bush announced
that any non-citizen arrested in the U.S. or overseas he deems a
terrorist can be tried by a military tribunal, bypassing civilian courts
and Constitutional protections. Secretary of Defense Donald Rumsfield
would appoint each panel and set its rules and procedures. That includes
level of proof needed for a conviction - it could be beyond a reasonable
doubt or something less stringent. There would be no appeal or judicial
review - the verdict of the panel stands, and the sentence, which could
be death, is carried out. Only the President or Rumsfield could change
the verdict or sentence.
Bush promises a "full and fair
trial" for any defendants and access to lawyers, probably a judge
advocate, but many people still wailed about the decision. "A
president of the United States has just assumed what amounts to
dictatorial power to jail or execute aliens," huffed the normally
reasonable William Safire. "We are letting George W. Bush get away
with the replacement of the American rule of law with military kangaroo
"End-Running the Bill of
Rights," trumpeted a Washington Post editorial. Military
trials "will erode throughout the world the image of America as a
place where certain freedoms cannot be compromised." The Post,
which winked at and excused President Clinton's law-breaking, is now
worried that Bush's order undermines "the rule of law."
"The President's decision," harrumphed
the ACLU, "is further evidence that the Administration is totally
unwilling to abide by the checks and balances that are so central to our
democracy." Even worse, the ACLU is "deeply disturbed."
As you might suspect, I consider such
criticisms a tad overblown. The critics fail to recognize that we are at
war, and terrorists are not your average criminal. They wear no uniform
and declare allegiance to no country, so they're not soldiers. They are
war criminals, committing unspeakable atrocities against unarmed and
innocent civilians. They should be treated as such.
It's also important to remember that
this order applies only to non-citizens. No American citizen can be
tried by a tribunal. This is important because it is generally
acknowledged that non-citizens do not enjoy the full protection of
liberties under the Constitution. No rights are being violated.
Besides, there may not be any
tribunals at all, even if we make the mistake of capturing bin Laden or
his cohorts (as opposed to killing them). Bush may decide to try some in
federal court. Or he may not. But I doubt it's a decision he'll make
There is ample historical precedent.
The U.S. has used military tribunals since the Revolutionary War. Most
recently, after World War II, a little more than 100 German soldiers
were tried and sentenced by American military tribunals.
In 1942, eight German saboteurs
entered the country with the purpose of blowing up railroad, bridges,
malls, and other targets. They were armed with explosives, wore civilian
clothing, and carried U.S. currency. After their arrest, President
Roosevelt had them tried before seven U.S. Army officers. All eight were
convicted and six executed. The other two received life in prison,
because they ratted out their companions. The Supreme Court later ruled
the trial constitutional, and nothing since then has contradicted or
reversed that ruling.
The bottom line is this. These people
are not petty criminals or American citizens. They are foreign
aggressors who have committed an act of war against the United
On that happy note, I'd like to wish
readers a happy and blessed Thanksgiving.