Faceoff: Tribunals on trial

By PETER ROFF and JAMES CHAPIN, UPI National Political Analysts  |  Nov. 20, 2001 at 10:51 AM
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WASHINGTON, Nov. 19 (UPI) -- Is President Bush's executive order authorizing the use of military tribunals to try suspected terrorists and their allies a judicious move or a threat to liberty? UPI National Political Analysts Peter Roff, a conservative, and Jim Chapin, a liberal, face off on opposite sides of this critical question.

Roff: It is necessary

The reaction from certain quarters to President Bush's executive order dealing with the trial of certain non-citizens who may be combatants in the war against terrorism is predictable.

A destructive form of moral equivalence is at work, based on assumptions that are inaccurate. Those who raise the "threat to civil liberties" straw man like a secular mantra are once again blaming America for trying to defend herself.

Vermont Democrat Pat Leahy, chairman of the Senate Judiciary Committee, said the order "sends a message to the world that it is acceptable to hold secret trials and summary executions, without the possibility of judicial review..." He paints a grim, inaccurate picture of America as a neo-fascist state. At this critical time, such comments are decidedly unhelpful.

America is at war, even though Congress has issued no formal declaration. Following the outline of the constitutionally questionable War Powers Act, the president sought and received congressional approval for the military excursion to destroy the al Qaida network and the Taliban regime.

In time of war when the nation's security is at stake, extraordinary measures are sometimes necessary. The measure taken by President Bush is wholly appropriate and, as constitutional expert Roger Pilon of the libertarian Cato Institute observes, the order is, on balance, "probably constitutional and has been held to be such by the Supreme Court" in the past.

The terrorists who crashed four civilian airliners on Sept. 11 were part of a network operating secretly under the cover of the constitutional protections all Americans enjoy, and who entered the country under false pretenses. They are combatants in a 21st century kind of war that will, regrettably, become all the more common in years to come.

Well-funded groups like al Qaida have the capacity to make war on a national and international basis. This is a radical departure from the way war has been conducted in the past, particularly where the United States has been concerned.

Their agents are -- in the word chosen by Attorney General John Ashcroft -- combatants, soldiers in a war they began. They should be treated as such, especially those who are, as the presidential order specifies, non-citizens of the United States. And this means the use of military tribunals to adjudicate their cases.

Catholic University Dean Doug Kmiec wrote in the Nov. 15 Wall Street Journal, "Past experience with trying terrorist acts within the regular criminal justice system has been unsatisfactory largely because standards of proof and rules of evidence appropriate to peacetime are ill-suited to the effective punishment and deterrence of terrorism."

This is not an attempt to rig the game. The normal, delicate balance between a citizen's rights -- again, the order only addresses non-citizens -- and society's interest in preserving its security has been disrupted by terrorism.

As Kmiec puts it, "The standard applied... is simple and pragmatic... evidence that is 'prohibitive to a reasonable man' -- that is more probable than not -- that a given person or organization is guilty" is sufficient.

Yet even those non-citizens who are suspect will receive due process, at least as far as determination of status is concerned.

The government is obliged to protect the people. These rules are a necessary measure to ensure that the guilty are punished, and to make certain those living in America but working for the cause of bin Laden's victory do not have an opportunity to flee. It is fully consistent with the rule of law upon which the nation was founded and has thrived.

Chapin: Bad idea, badly timed

President Bush's declaration of an "extraordinary emergency" enables him to order military trials for suspected al Qaida terrorists and those who harbor them, bypassing the American criminal justice system, its rules of evidence and its constitutional guarantees.

It applies to non-U.S. citizens arrested in the United States or abroad, and lets the president himself decide which defendants will be tried by military tribunals. It leaves to Defense Secretary Donald H. Rumsfeld to appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. It won't allow judicial review.

The reaction to this order from certain quarters, such as the editorial pages of The New York Times and the Washington Post, might be predictable, which doesn't mean it's wrong. But it is a reaction shared by such un-usual suspects as William Safire and Rep. Bob Barr (R-Ga.).

Safire accused Bush of being misled by a panicky attorney-general into "seizing dictatorial power" through this order.

It surely was an oddity that the administration invoked Lincoln and FDR, the two great villains of Attorney General John Ashcroft's friends in the "southern partisan" movement, as the historical justifications for the president's military order.

But at least Lincoln and Roosevelt were acting at a time when the U.S. was legally at war. No matter how horrific the circumstances of the last few months, the U.S. is not acting under a declaration of war now.

The actual historical comparison is neither the Lincoln nor Roosevelt administrations, but Harry Truman's. They were not controversial at the time, but there were a dozen trials of 182 Nazi concentration camp and euthanasia program staffs tried by U.S. military courts at Dachau from 1945-48, in which 89 men were convicted.

Dick Cheney said that suspected terrorists, because they are not "lawful combatants... don't deserve" the "same guarantees and safeguards" as American citizens get.

But we don't protect the rights of those accused, most of whom are likely to be guilty, and many of them vile people, because they deserve it. We do so because we deserve it.

The greatest violations of civil liberties in American history have always been undertaken against "people who were so clearly wrong that they don't deserve safeguards." After all, the same Supreme Court which approved FDR's secret military trial of German saboteurs also approved the detention of 100,000 Japanese-Americans on the basis of nothing but their ethnicity.

And while "slippery slope" arguments can be wrong, it is pretty clear that we are embarking on a slippery slope here.

Consider. At the moment, an unspecified number of immigrants is being held with no specific charges being lodged against them. Last month the Justice Department said the total number of people detained, including those who were later released, was more than a thousand, but now the DOJ is refusing even to say how many people are under detention. Unless one has faith that the government is always right, this is, to say the least, worrisome.

Senator Leahy's cautions were indeed well taken: he asked how this fitted into our Constitution and legal system. "The president's order covers suspected terrorists arrested here as well as abroad. In the past and as recently as in the anti-terrorism bill, the administration has sought and Congress has created new criminal offenses specifically aimed at terrorists, anticipating that they will be charged and prosecuted as regular criminals, not war criminals.

"There has been no formal declaration of war, and in the meantime, our civilian courts remain open and available to try suspected terrorists," Leahy continued. "All this raises questions about whether the president can lawfully authorize the use of military commissions to try persons arrested here.

"The way this was handled also contributes to the rising concern in Congress about this administration's preference for unilateralism as it promotes policy changes ranging from restructuring the INS to eavesdropping on detainees' conversations with their attorneys to this order on military tribunals."

For the president to claim such powers for himself may sound fine to some conservatives right now, but everyone needs to remember that any power granted to government will someday be held by one's domestic enemies. Principled conservatives like Bob Barr and William Safire obviously recognize the danger.

Leadership isn't a matter of seizing unique powers for one's office while critiquing those who raise questions as unpatriotic. And by doing this last week, resident Bush stepped on the story line about the triumph in Afghanistan. This is a bad idea, badly timed.

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