OF ALL the myriad criticisms lately leveled against President Bush's November 13 "military tribunals" order, the most wonderful--for pure dishonesty--is the indignation expressed over the directive's alleged denigration of regular Pentagon legal work. What the president has proposed "bear[s] scant resemblance to normal military justice," huffed a New York Times editorialist last week, imagining a "shadow system . . . in which defendants can be tried and condemned to death" on the thinnest pretext. Bush's "diktat," added columnist William Safire, a "subversion of the Uniform Code of Military Justice" hatched by the "Ashcroft-Mueller axis" of Justice Department "zealots," is now being heroically resisted by "cooler heads" in the Pentagon. Already, though, our "extant system of courts martial has been besmirched," Harvard Law School's Laurence Tribe told the Senate Judiciary Committee on December 4. Besmirched! Of course, none of these gentlemen actually knows shinola about our "extant system of courts martial," else they would not be celebrating its purported superiority over the president's "Soviet-style secret military trials" (Safire, again). Defendants charged with a non-capital offense under the Uniform Code cannot be convicted unless two-thirds of a court martial's panel members approve--the same standard Bush has established, "at a minimum," for prospective al Qaeda trials. Death penalties imposed by regular courts martial require a unanimous vote, however, and Bush has not yet promised that tribunals convened in accordance with his November 13 instructions will adopt this additional threshold, too. So . . . So the president's critics simply assume, without evidence, that no procedural refinements will be forthcoming from the administration, that Bush does indeed intend to put "hundreds" or even "thousands" of people to death by two-thirds straw poll, and that this departure alone from the white-gloves delicacy of "normal military justice" is a self-evident breach of civilization's basic code. The spectacle is beyond satire, really. We have a bunch of self-righteous ignoramuses invoking the Bill of Rights in defense of a "traditional" Pentagon jurisprudence that has been the bane of civil libertarians for decades. Under "normal military justice," the right to handpick members of a court martial, who perform judge and juror roles simultaneously, is awarded to the very same officer who has accused the defendant in the first place. That defendant is permitted an unlimited number of for-cause challenges against nominated panelists, and so long as at least five people remain in the pool, his accuser is not permitted to replace the ones who get bounced. But in most cases, the prosecution doesn't want to replace excluded panelists. In a non-capital trial where the two-thirds rule applies, the prosecution wants a court martial with exactly six panelists--three of whom, fully half, the defendant must win over to avoid conviction (whereas, for example, with a panel of eleven, four votes, or barely a third, would be sufficient for acquittal). In a military death penalty case, where unanimity is required for conviction, the indefinite size of trial-court membership lends an even more forceful gravitational pull to voir dire proceedings: Eager to limit the possibility of defeat, the prosecution has every incentive to nominate panelists biased in its favor. And, desperate not to lose a single potential vote to save his life, the defendant has little or no incentive to object. Interesting, no? "Normal military justice," in short, is precisely the sort of thing, under any other circumstances, that a minimally informed New York Times editorial page would be having a we-the-people conniption over. That the Times might be wrong to do so--the court martial system's peculiar voir dire rules are defensible and their constitutionality has been consistently upheld--is not the point. The point, instead, is that the Times and its fellow hysterics have nothing of substance on which to ground their complaint that Bush's ad hoc military tribunals will extend fewer due-process courtesies to Taliban war criminals than regular court martial trials provide. We would be willing to bet a large amount of money, to the contrary, that when the Pentagon does finally make public its detailed plans for those tribunals, all talk about the beauties of "normal military justice" will disappear without a trace. If so, incidentally, it will not be because Don Rumsfeld's cool-headed Pentagon heroes have held the constitutional line against an Ashcroft-Mueller axis of Justice Department zealots. It used to be that journalists picked up the phone and made inquiries about such stuff. Were that still the case, the world (and William Safire) would already know that military tribunals have been a Pentagon idea from the start, and that our attorney general and FBI chief have had virtually no influence on their development. But these are mere facts. How much easier it is to just let rip and cuff up poor John Ashcroft, who isn't exactly a rocket scientist, let's face it. And how exciting it is to proclaim that the president has "deformed" American justice while supervising a "seizure of power by the executive branch." And how boring it would be to worry, pre-publication, about how all of this is slanderously false. Professor Tribe has told the Senate Judiciary Committee that the president's military tribunals order is "flawed at its base" inasmuch as it "violates the separation of powers required by our Constitution." Tribe has since amplified this charge in a New Republic essay which begins by asserting that, absent the "ritualistic solemnity" of a congressional war declaration, the president lacks authority to effect "domestic deprivations" like those in his November 13 directive. Later in this essay, however, Tribe concedes that technical questions about the current "state of war" are practically and legally irrelevant. And it is here, at last, that he arrives at the truth. The United States has been attacked, with grievous loss of life, by a hostile foreign force. And when the United States has been attacked, the president is constitutionally obligated to mount a national defense--without waiting for Congress. "The Framers," Alexander Hamilton wrote in 1801, "would have blushed" at any contrary suggestion. "[W]hen a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory." Among the president's wartime powers, according to an unbroken string of Supreme Court decisions dating back to Brown v. United States in 1814, is the prerogative to decide the fate of enemy prisoners, even without trial. On this point "no doubt is entertained," Chief Justice Marshall explained in Brown. "That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded." A "humane and wise policy" might mitigate this "rigid rule," Marshall allowed. But the Constitution does not. For what it's worth, which isn't much, Congress long ago--in Title 10 of the U.S. Code--affirmed the president's authority to employ military tribunals for prosecutions of war crimes. It is beyond serious question that George W. Bush is free to employ them now. There are those who would like to question how he proposes to employ them--and against whom. Scott Silliman of Duke University Law School, for one, doubts whether simply belonging to al Qaeda should bring a man under jurisdiction of a U.S. military tribunal. Most al Qaeda soldiers captured in Afghanistan, Silliman advises, will deserve protected status as POWs--which will qualify them, under international law, for Pentagon-funded, penalty-free transportation back to their homes. And what of any al Qaeda cell that might yet be exposed in America? Silliman's "greatest concern," he says, is that "military commissions sitting in the United States" could prosecute resident aliens "whose only offense might be that they are, or were at some time in the past, members of al Qaeda." Here in the real world, of course, our "greatest concern" is that anyone whose "only offense" is membership in al Qaeda might still be alive when next the sun comes up. On this particular score, Scott Silliman stands alone. But the carelessness--and legal emptiness--of his argument are nevertheless entirely typical of the president's critics. Thus, the Times editorial page casually reports that Bush's November 13 directive extends to "any number of homeowners who sheltered" the September 11 terrorists "with no realization that they were anything but students." And Laurence Tribe gives himself leave to assert that the president has granted Pentagon prosecutors "unbridled discretion to conduct all proceedings in complete secrecy." Both claims are specious. By its express terms, the military order is restricted to al Qaeda functionaries who have "engaged in," "aided," "abetted," or "conspired to commit" acts of international terrorism, along with accomplices who have "knowingly harbored" such criminals. And nothing in the military order suggests that trials of such people will be "secret." Instead, the document merely instructs the Pentagon to take care that any military tribunal it convenes fully protects the federal government's classified information--consistent with preexisting law. THAT SAID, it bears pointing out that were the president actually determined to conduct secret trials of every prisoner captured in Afghanistan, our Constitution would not be offended. It is ludicrous to suggest that Osama bin Laden will, the moment he is detained by an American authority, earn the full panoply of Fifth and Sixth Amendment rights generally guaranteed to criminal defendants by the Constitution's judicial branch. By the same logic, he would also then enjoy a presumptive right to bear arms, under the Second Amendment, and a federally enforceable right to use reproductive contraceptives, under the Supreme Court's Fourteenth Amendment Griswold decision. In the entire history of the United States, no foreign combatant waging war against America has ever won himself trial in a regular federal district court--on any charge, much less on a war crimes indictment. And there is nothing in the history of Supreme Court jurisprudence to suggest that even U.S. citizenship frees a man suspected of war crimes against other Americans from the jurisdiction of a Pentagon military tribunal. Period. The Times and others contend that President Bush will "wind up...undermining [America's] standing as a defender of international human rights" if he proves grudging where the procedural niceties of al Qaeda war crimes trials are concerned. A legitimate debate might be had over the rules governing military tribunals. But that is not the narrow debate John Ashcroft's tormentors are treating us to. They are warning, instead, that the president of the United States is behaving like a lawless tyrant. That this warning should pretend to be a defense of American honor is a farce. --David Tell, for the Editors
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