pdx39
Really Experienced
- Joined
- Dec 5, 2001
- Posts
- 256
By WILLIAM SAFIRE
As soon as German U-boats put eight saboteurs
on U.S. shores during World War II, one of the eight called
the F.B.I. to betray the mission but was brushed off as a
crackpot. Days later, he called again and managed to
persuade the F.B.I. he was an authentic saboteur. Partly to
keep this embarrassment of bungled enforcement from
becoming known, the eight were secretly tried by a military
court inside the F.B.I. headquarters.
Unexpectedly, a U.S. Army lawyer assigned to the Germans
mounted a spirited defense. Col. Kenneth Royall, citing the
landmark 1866 Supreme Court decision of Ex Parte Milligan -
holding that martial law could not be applied where federal
civil courts were in business - challenged the secret
tribunal's legality.
F.D.R. told his attorney general, according to Francis
Biddle's memoirs, that he would resist any Supreme Court
decision to give the accused saboteurs a regular court
trial: "I won't hand them over to any United States marshal
armed with a writ of habeas corpus." Confrontation was
averted when a cowed Supreme Court unanimously acknowledged
the extra- judicial power of a president armed with a
Congressional declaration of war. Six of the eight captives
went to the electric chair; J. Edgar Hoover was awarded a
medal of honor.
Now President Bush, with no such Congressional declaration,
is using that Roosevelt mistake as precedent for his own
dismaying departure from due process. Bush's latest
self-justification is his claim to be protecting jurors (by
doing away with juries). Worse, his gung-ho advisers have
convinced him - as well as some gullible commentators -
that the Star Chamber tribunals he has ordered are
"implementations" of the lawful Uniform Code of Military
Justice.
Military attorneys are silently seething because they know
that to be untrue. The U.C.M.J. demands a public trial,
proof beyond reasonable doubt, an accused's voice in the
selection of juries and right to choose counsel, unanimity
in death sentencing and above all appellate review by
civilians confirmed by the Senate. Not one of those
fundamental rights can be found in Bush's military order
setting up kangaroo courts for people he designates before
"trial" to be terrorists. Bush's fiat turns back the clock
on all advances in military justice, through three wars, in
the past half-century.
His advisers assured him that a fearful majority would
cheer his assumption of dictatorial power to ignore our
courts. They failed to warn him, however, that his denial
of traditional American human rights to non- citizens would
backfire and in practice actually weaken the war on terror.
Spain, which caught and charged eight men for complicity in
the Sept. 11 attacks, last week balked at turning over the
suspects to a U.S. tribunal ordered to ignore rights
normally accorded alien defendants. Other members of the
European Union holding suspects that might help us break Al
Qaeda may also refuse extradition. Presumably Secretary of
State Colin Powell was left out of the Ashcroft try-
'em-and-fry-'em loop.
Thus has coalition-minded Bush undermined the antiterrorist
coalition, ceding to nations overseas the high moral and
legal ground long held by U.S. justice. And on what leg
does the U.S now stand when China sentences an American to
death after a military trial devoid of counsel chosen by
the defendant?
We in the tiny minority of editorialists on left and right
who dare to point out such constitutional, moral and
practical antiterrorist considerations are derided as
"professional hysterics" akin to "antebellum Southern
belles suffering the vapors." Buncha weepy sissies, we are.
(Frankly, Scarlett, I don't give a damn - I've always been
pro-bellum.)
The possibility of being accused, however, of showing
insufficient outrage at those suspected of a connection to
terrorists shuts up most politicians. And a need to display
patriotic fervor turns Bush's liberal critics into
exemplars of evenhandedism. Careers can be wrecked by
taking an unpopular stand.
But not always. Forty years ago, my political mentor
introduced me to his senior partner, Ken Royall, who after
World War II had been appointed by President Truman to be
the last secretary of war. Royall, then head of a great New
York law firm, considered the high point of his career his
losing fight to get a group of reviled Nazi terrorists a
fair American trial.
As soon as German U-boats put eight saboteurs
on U.S. shores during World War II, one of the eight called
the F.B.I. to betray the mission but was brushed off as a
crackpot. Days later, he called again and managed to
persuade the F.B.I. he was an authentic saboteur. Partly to
keep this embarrassment of bungled enforcement from
becoming known, the eight were secretly tried by a military
court inside the F.B.I. headquarters.
Unexpectedly, a U.S. Army lawyer assigned to the Germans
mounted a spirited defense. Col. Kenneth Royall, citing the
landmark 1866 Supreme Court decision of Ex Parte Milligan -
holding that martial law could not be applied where federal
civil courts were in business - challenged the secret
tribunal's legality.
F.D.R. told his attorney general, according to Francis
Biddle's memoirs, that he would resist any Supreme Court
decision to give the accused saboteurs a regular court
trial: "I won't hand them over to any United States marshal
armed with a writ of habeas corpus." Confrontation was
averted when a cowed Supreme Court unanimously acknowledged
the extra- judicial power of a president armed with a
Congressional declaration of war. Six of the eight captives
went to the electric chair; J. Edgar Hoover was awarded a
medal of honor.
Now President Bush, with no such Congressional declaration,
is using that Roosevelt mistake as precedent for his own
dismaying departure from due process. Bush's latest
self-justification is his claim to be protecting jurors (by
doing away with juries). Worse, his gung-ho advisers have
convinced him - as well as some gullible commentators -
that the Star Chamber tribunals he has ordered are
"implementations" of the lawful Uniform Code of Military
Justice.
Military attorneys are silently seething because they know
that to be untrue. The U.C.M.J. demands a public trial,
proof beyond reasonable doubt, an accused's voice in the
selection of juries and right to choose counsel, unanimity
in death sentencing and above all appellate review by
civilians confirmed by the Senate. Not one of those
fundamental rights can be found in Bush's military order
setting up kangaroo courts for people he designates before
"trial" to be terrorists. Bush's fiat turns back the clock
on all advances in military justice, through three wars, in
the past half-century.
His advisers assured him that a fearful majority would
cheer his assumption of dictatorial power to ignore our
courts. They failed to warn him, however, that his denial
of traditional American human rights to non- citizens would
backfire and in practice actually weaken the war on terror.
Spain, which caught and charged eight men for complicity in
the Sept. 11 attacks, last week balked at turning over the
suspects to a U.S. tribunal ordered to ignore rights
normally accorded alien defendants. Other members of the
European Union holding suspects that might help us break Al
Qaeda may also refuse extradition. Presumably Secretary of
State Colin Powell was left out of the Ashcroft try-
'em-and-fry-'em loop.
Thus has coalition-minded Bush undermined the antiterrorist
coalition, ceding to nations overseas the high moral and
legal ground long held by U.S. justice. And on what leg
does the U.S now stand when China sentences an American to
death after a military trial devoid of counsel chosen by
the defendant?
We in the tiny minority of editorialists on left and right
who dare to point out such constitutional, moral and
practical antiterrorist considerations are derided as
"professional hysterics" akin to "antebellum Southern
belles suffering the vapors." Buncha weepy sissies, we are.
(Frankly, Scarlett, I don't give a damn - I've always been
pro-bellum.)
The possibility of being accused, however, of showing
insufficient outrage at those suspected of a connection to
terrorists shuts up most politicians. And a need to display
patriotic fervor turns Bush's liberal critics into
exemplars of evenhandedism. Careers can be wrecked by
taking an unpopular stand.
But not always. Forty years ago, my political mentor
introduced me to his senior partner, Ken Royall, who after
World War II had been appointed by President Truman to be
the last secretary of war. Royall, then head of a great New
York law firm, considered the high point of his career his
losing fight to get a group of reviled Nazi terrorists a
fair American trial.
