Security vs. Liberty
First Written in Feb. 2002

The World Trade Center attacks launched a battle between John Ashcroft and civil libertarians. But security and liberty are not enemies: liberty needs security and the raison d’ếtre of security is liberty. The battle between Ashcroft and his opponents is a necessary one, for this crucible will forge the justice system of the future, which must shield us from both fiendish terrorists and the spectre of McCarthyism. The first arena of this battle is military tribunals.

The tribunal fight involves moral imperatives and legal doctrine. The US has interests in:

• maintaining intelligence secrecy (which was compromised by the revelation that the US intercepted bin Laden’s satellite phone calls during the embassy bombing trial, and could be compromised by terrorists learning what we don’t know)
• expeditiousness (a decade-long trial like the Lockerbie bombers is not acceptable)
• securing the judicial process to avert future hostage-taking and terrorist acts to spring bin Laden.

Given all this and the uniquely destructive nature of our threat, I agree that military tribunals are a necessary tool.

However, terrorist trials have aims beyond punishment. Catharsis for victims, keeping the attacks in the public consciousness, engaging people in civics, maintaining both the appearance and the actuality of fairness, and ensuring transparency to prevent abuse, cover-ups, and shady deals (as occurred in the Lockerbie trial) are important interests as well. Military tribunals also give an excuse for other countries to put Americans in kangaroo courts and be non-cooperative in sharing information. For these reasons, tribunals should be rare, as open as possible, and closely regulated.

The case for tribunals is based on precedent: Lincoln’s suspension of habeas corpus during the Civil War, FDR’s use of a military tribunal, and the Supreme Court’s 1942 Quirin decision. It is vital that we scrutinize these legal justifications, for we are not a society that dispenses with the rule of law when it is no longer convenient. The rule of law is based on separation of powers, due process, and transparency, and the administration’s initiatives seem to disregard all three.

The President authorized military tribunals by executive order with rules at the discretion of the Secretary of Defense. However, Article 1, Section 8 of the Constitution states, “The Congress shall have power …to constitute tribunals inferior to the Superior Court, to define and punish…offenses against the law of nations, to declare war…and make rules concerning captures on land and water…to make all laws which shall be necessary and proper for carrying into execution…all powers vested…in the government of the United States.” Article III, Section 1 states, “The judicial power of the US shall be vested in one Supreme Court and in such inferior courts as the Congress may … establish.” FDR and the Quirin decision offer no support here: in the Quirin decision, the Supreme Court stated, “By the Articles of War, and especially Article 15, Congress has explicitly provided…that military tribunals shall have jurisdiction to try offenses against the law of war…” Quirin extended support to FDR on the basis of a Congressional declaration of war and explicit Congressional authorization of military tribunals, neither of which is present today. The lack of Congressional input on this momentous decision is inexcusable.

The President’s order also forecloses the right of appeal to any other court! Article III, section 2 of the Constitution states, “The judicial power shall extend to all cases arising under this Constitution, the laws…, to controversies to which the US shall be a party…In all cases, the Supreme Court shall have appellate jurisdiction, with such exceptions as the Congress shall make…”. Even the Quirin case states, “the President’s proclamation…does not bar accused from access to the civil courts…” The right of appeal is fundamental to our code of justice, and eliminating it traduces both the separation of powers and due process.

The President’s executive order threatens due process in other ways. Article 1, Section 9 of the Constitution states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” That the public safety is endangered by infiltrators is not in doubt. However, as the Supreme Court stressed in its 1866 Milligan case, the Constitution does not authorize suspending any other judicial protection. The present order is breath-taking: the President alone decides who would come before the tribunals, the defense secretary sets the rules, the prosecutors and judges of the tribunals report to him as commander in chief, cases can be heard in secret, the defendant would have no right to choose his own counsel or see the evidence against him, and only 2/3 of the judges would have to agree to impose the death penalty. Aside from ignoring fairness, these fly in the face of both the Constitution and the Bill of Rights. Article III, section 2 states, “The trial of all crimes…shall be by jury.” The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to trial by jury…, be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, …to have assistance of counsel.” Moreover, the present order does not adhere to the Uniform Code of Military Justice, which requires open trials, unanimity in capital cases, allows for appeal, and allows defendants to choose counsel.

Also appalling is the order’s reach over all non-citizens, applying to millions of permanent residents (who, as they can be drafted, should enjoy constitutional protection). This stance is contradicted both by Milligan (in which the Court held that military tribunals may not try civilians unless the civil courts are “actually closed and it is impossible to administer justice”, and by the 1946 Duncan vs. Kahanamoku case, where the Supreme Court held that civilians could not be subject to military law and that civil courts could not be replaced by martial law without Congressional authorization.

Together with the veil of opacity that the administration is pursuing with secret detentions of hundreds of people, an order allowing warrantless wiretaps of prisoner-lawyer communications, and another executive order giving Presidents the right to veto indefinitely the release of Presidential papers, the erosion of due process and disregard for checks and balances is tragic. Already, a custodial death has occurred, and there have been reports of prolonged and unjustified detentions.

The rules of military tribunals should be made with congressional oversight and its outcomes subject to judicial review. Elemental due process (e.g., free choice and communication with counsel) should be respected in accord with both the Bill of Rights and the UCMJ. The scope should be limited to unlawful combatants captured abroad or non-resident saboteurs. As much as possible, trials should be open for the sake of catharsis, image, and fairness.

These discussions are not mere legalese. The Constitution and the Bill of Rights are not contracts to be renegotiated at will; they are promises to the people, as worthy of respect as the promise of security. Rules may & should be stretched and bent in such times but must not be ignored or discarded. While the constitution is not a suicide pact (words of Justice Robert Jackson), in the words of the Supreme Court, it “is a law for rulers and people, equally in war and in peace, and covers with shield of its protection all classes of men, at all times, and under all circumstances.”