December 3, 2001
Military Tribunals Put Our Justice System on Trial
Suddenly the fix for terrorism seems to be secret military tribunals on American soil. Have so many Americans really lost confidence in our institutions? Well, I am happy to report that there is nothing broken about our system of justice. Executive orders authorizing secret trials on American soil, however, send a very different message to America and the world. That is a shame. It is one thing to hold a military-style trial for an enemy captured in conflict abroad, and I don't think many would argue otherwise. It is entirely different, though, when government asserts a right to take people off the streets of our own country and try them in secret- where in some cases death is to be the punishment.
There have been many arguments for why setting up military tribunals on U.S. soil is a good idea. None of them are compelling. Many have cited three-ring circus celebrity trials in the past as justification for secret trials of suspected terrorists. Secret trials might be more orderly, that is true, but ask anyone who has suffered under a totalitarian regime whether is it worth sacrificing justice for "efficiency."
Others have warned that civil trials of terrorism suspects will result in leaks of intelligence information. This too is unconvincing. There are already mechanisms in place to protect sensitive information from being compromised in trial, and many such trials have been held.
Some, even conservatives, have offered the example of President Franklin Roosevelt's use of a military court to try a group of Nazi saboteurs during World War II. It is curious to see FDR as a model for conservatives, but nevertheless we were in a declared war and those captured were agents of a country with which we were in an active state of war. We are not currently in a state of war, despite what pundits might claim.
Also worth consideration is the fact that this executive order does not prescribe standard military trials held under the Uniform Code of Military Justice for suspects. Whereas the UCMJ requires unanimity in capital cases, this new military court requires only two-thirds agreement, even to deliver a sentence of death. Also, Fifth Amendment guarantees are compromised in this new court, as is the right to appeal and other due process guarantees.
Finally, it is argued that only terrorists are to be subjected to these secret courts. But how do we decide someone is a terrorist before a trial? That sounds an awful lot like government deciding guilt before a show trial. More troubling, under recently passed "anti-terrorism" legislation, the definition of "terrorism" for federal criminal purposes has been greatly expanded. A person can now be considered a terrorist for belonging to a pro-constitution group, a citizen militia, or a pro-life organization. How long before these "terrorists" are subject to secret trials?
Who cares, supporters will say. After all, only foreigners are to be tried under these courts and we all know only American citizens are afforded the benefits of our judicial system. Fortunately our founding fathers saw things differently, as they drew up a system that recognized the fundamental rights of all humanity and created a model for constitutional governance. Do Americans really expect Germany or Holland, for example, to disregard their own laws when trying Americans suspected of crimes in their countries? Of course not.
Again, supporters of military tribunals promise that only foreigners are to be tried in these secret trials. But what is to come next? What if a U.S. citizen is suspected of working closely with terrorists in one of their cells? Would it be a huge leap in this case to include him in the military trials of his partners in crime?
Americans now more than ever must trust the great constitutional institutions that have served us well for more than 200 years. The separation of powers and rule of law are cornerstones. Remove them and our way of life will quickly crumble.