Keeping Our Hands Clean in This War

Keeping Our Hands Clean in This War

9 December 2001

The headline in the St. Petersburg Times declaring "Key to Victory? Clean hands" was attached to a story on how good hygiene by U.S. Marines in Afghanistan is pivotal to preventing the spread of disease in the ranks. But the sentiment could be a metaphor for the way we prosecute this war against terrorism.

The key to victory not just against Osama bin Laden but in every corner of the (educated) Muslim world lies in maintaining our moral authority, in upholding the principles of blind and equal justice that have made our nation a triumph of the rule of law. Strip away those values, as the Bush administration is doing with its unilateral imposition of secret military tribunals for non-citizens suspected of terrorist ties, and the United States becomes just another double-speak nation where the rules of justice are manipulated to obtain a particular result.

And our fight against terrorism changes from a virtuous battle of individual liberty versus religious totalitarianism to one of technology-enhanced brute strength versus martyrdom. Bush and Co. have been in overdrive since the tribunal order was given on Nov. 13, trying to convince us that the idea is in perfect concert with constitutional norms. Administration officials say trials by tribunal will be no different than military courts-martial. "What's good enough for our men and women in uniform is good enough for terrorists," or some such malarkey, has been the administration's on-message. Trouble is, this is not even close to the truth. As has been noted by scholars and commentators, defendants in a court-martial have real due process rights including the right to appeal any judgment to the courts, to hold prosecutors to the strict rules of evidence, to choose their own lawyers and to require a unanimous verdict before the death penalty is imposed. Also, courts-martial are presumptively open proceedings. Bush's tribunal doesn't guarantee any of these protections.

Particularly galling is the way administration officials point to the secret military commission set up by Franklin D. Roosevelt as precedent. Roosevelt's tribunal was established during World War II to try eight Nazi saboteurs who landed on American shores to blow up bridges, munitions plants and other elements of American war preparedness. It was a military court with a limited mandate to try a group of confessed enemy combatants -- starkly different from Bush's sweeping order that covers any noncitizen with even a tangential relationship to terrorism. Moreover, while the U.S. Supreme Court approved the constitutionality of the FDR's tribunal in the case of Ex parte Quirin (the same deferential court that two years later approved the internment of more than 70,000 Japanese-Americans), it was a decision a number of justices later came to regret.

Soon after the Germans landed on Long Island, N.Y., and Ponte Vedra Beach, Fla., in June 1942, two of them decided to betray the plan and one went to the FBI to confess. Historians believe the military trial of these eight men was held secretly not to protect national security but in order to shield FBI Director J. Edgar Hoover from embarrassment. Hoover made a show of having foiled the Nazi plot without revealing that one of them had turned himself in, and no one in the administration wanted the public to know just how readily Nazis had slipped into our country.

When the inevitable challenge to the constitutionality of the closed military hearings came before the U.S. Supreme Court, the justices obliged the president and abandoned principle in a raw show of wartime obsequiousness.

The court considered the case almost immediately upon its receipt and soon thereafter issued a brief ruling affirming the legality of the tribunal. It said a full written ruling would be forthcoming. In the meantime, six of the men were executed.

But the court found the job of writing a justification for approving the tribunal to be formidable. It was not so easy for the justices to explain why they trod over court precedent from 1866 prohibiting the use of military commissions if the civil courts were operational, and why all sorts of constitutional guarantees could be ignored.

Months later the court finally issued a written ruling. But a number of the justices would express discomfort with what they'd done. Justice William O. Douglas stated, "Our experience (in Quirin) indicated to all of us that it is extremely undesirable to announce a decision on the merits without an opinion accompanying it. Because once the search for the grounds . . . is made, sometimes those grounds crumble." Justice Felix Frankfurter said that Quirin "is not a happy precedent."

As limited as it was, FDR's military commission was still a wartime excess. It should be relegated to the status of an unfortunate chapter in American history, not brushed off for use whenever a president wants to bypass the rules of due process. Our leaders should be more cognizant of the big picture. The point is not just to get bin Laden, but to demonstrate the rightness of our cause. Which means asking ourselves whether our hands can ever be clean if our fingernails are dirty.

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