Military Tribunals – A Wartime Necessity

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– November 30, 2001

When Leon Czolgosz shot President William McKinley in 1901, he was tried before a civilian court, as was Giuseppe Zangara, the would-be assassin of President-elect Franklin Roosevelt in 1933.

When John Hinckley Jr. shot President Reagan in 1981, he, too, was tried before a civilian court. But those who plotted the murder of Lincoln were tried by a military commission at Ft. McNair – with U.S. Army Judge Advocate General Joseph Holt presiding – and hanged.

The difference? In April 1865, the Union was still at war. Spies and saboteurs caught behind Union lines were turned over to the Army. This was true for both sides. Thus, in judging President Bush’s decision to use military tribunals, only two questions need to be answered. Is America at war? Is our homeland under attack?

With Marines and special forces in combat in Afghanistan, and grieving New York firefighters still digging in that smoking pile of rubble in lower Manhattan for the charred remains of their buddies, the answer to both is obvious. Why then is Bush being treated like some arsonist of the Bill of Rights for following tradition and doing his duty as a wartime commander in chief?

General Washington used a military tribunal to try and hang Major John Andre, the British spy and emissary to Benedict Arnold. FDR used military tribunals to try Nazi saboteurs put ashore from U-boats. Six Nazis were executed. Lincoln used military tribunals to convict and hang Southern saboteurs. Moreover, he suspended habeas corpus, imprisoned thousands without trials, locked up editors and made himself a virtual dictator of the Union.

But if history has approved of the wartime military tribunals of Washington, Lincoln and FDR, why is John Ashcroft under siege? After all, more innocents have been massacred in atrocities in Bush’s war than in any other war in U.S. history. Why the double standard, Sen. Leahy?

Some now argue that the Nazi saboteurs should have been tried in civilian court. But suppose instead of six, it had been 600 Nazis. Suppose Tojo had put ashore 1,000 “kamikaze tourists” in 1941 with orders to run amok, bombing and killing, to create panic in America as soon as Japan attacked. Would each and every Nazi and Japanese saboteur have been entitled to his own separate civilian trial?

Have those demanding civilian trials for foreign terrorists thought through the logic of their position? They are saying it is permissible to drop a 15,000 pound daisy-cutter bomb on Osama bin Laden and his extended family in Kandahar, but if he makes it to U.S. soil and blows up the Sears Tower, the families of his victims must pay for his defense and his trial can be carried on Court TV.

Would prosecutors be required to permit bin Laden’s lawyers to question al-Qaida defectors who betrayed him, or see raw intelligence data leading to his indictment? This is not a game we are in, but a war where the next great terrorist attack could be the detonation of an atomic weapon in an American city.

Recall: It took longer than World War II to convict and execute Timothy McVeigh. If every terrorist who slips into the United States is instantly entitled to all of McVeigh’s protections and appeals, America will become a haven for terrorism, because America will be the safest place on earth to plot and ply their murderous trade.

This hostility to military tribunals is rooted in part in that 1960s radicalism exemplified by Bill Clinton’s letter to his ROTC colonel, saying the best people he knew “loathed” the military.

Since Vietnam, this attitude has infected our popular culture and is reflected in films from “Dr. Strangelove” and “Seven Days in May,” to “Apocalypse Now” and “Platoon.” In the 1990s movie, “A Few Good Men,” a wiseacre Ivy League grad (Tom Cruise) uses his cleverness to expose the fascistic militarism of the Marine officer (Jack Nicholson), who commands the detachment at Guantanamo Bay, Cuba. The Hollywood formula is ever the same: Liberal heroes triumph over military fascists.

The line used to infer that West Pointers are somehow suspect jurors is: “Military justice is to justice what military music is to music.” But who would not prefer John Philip Sousa to punk rock? And does anyone think a tribunal of Navy or Marine officers would have handed in a verdict as chowder-headed as did the O.J. jury, mesmerized by the “If-the-glove-doesn’t-fit-you-must-acquit!” antics of the “Dream Team”?

But this matter can be readily resolved. Let Congress vote to outlaw military tribunals in the war on terrorism, then let voters sit in a tribunal of judgment on a malingering Congress. My guess? Capitol Hill will raise a mighty racket about military tribunals to mollify their goo-goos, but it will not dare to confront Bush. They’ve read the polls.

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