G. Russell Evans
Captain, U.S. Coast Guard ( Ret.)
Sunday, Feb. 17, 2002

Valuable Option

The president has moved decisively and promptly, with overwhelming authority and precedence. A military tribunal is a valuable option. It protects intelligence sources, assures swift justice and enhances national security – all within established legal and constitutional procedures and historic precedents.

Military tribunals are the way to go, and most Americans know it.

But not the American Civil Liberties Union, which is "deeply troubled about distorting the Bill of Rights."

Opposing in full force are bleeding-heart lawyers Like Harvard's Alan Dershowitz, O.J. Simpson defender Johnnie Cochrane and Sen. Patrick J. Leahy, D-Vt., now throwing his weight around as chairman of the Senate Judiciary Committee.

'Justice' for Terrorists

The bleeding hearts want "justice" for the terrorists – i.e., civil courts, open trials by jury, endless appeals and top defense lawyers – all paid for by their victims, the U.S. taxpayers. That's the American way, they whine.

That was the story with Osama bin Laden's terrorists who bombed our embassies in Kenya and Tanzania in 1998, killing 224 people, including 12 Americans.

President Clinton was busy with personal scandals; he didn't declare war on terrorism. He opted for federal court in Manhattan, where the case is still languishing. Cost to taxpayers so far has been $7 million, three years and Iawyerly guile ad nauseam.

Precedent for bin Laden

Bin Laden had his precedent. The coast was clear for subsequent assaults on the USS Cole and the World Trade Center and the Pentagon. His al-Qaeda network could continue to muddle the American justice system with convoluted trials in mid-Manhattan if they got caught – a sort of twin victory.

President Bush shook that dream with his commonsense order for military courts to try non-citizens engaged in terrorism. On Sept. 11, the terrorists massacred innocent Americans, or planned it and, therefore, are unlawful combatants subject to trial in military courts, for which there is abundant authority and precedence.

'Airy-Fairy' Civil Liberties

Britain's Home Secretary David Blunkett warned, "We can live in a world with airy-fairy civil liberties and believe the best in everybody – and then, they destroy us!"

As for the "constitutional rights" of unlawful combatants, Justice Robert H. Jackson once wrote, "The Constitution is not a suicide pact." It is designed to "provide for the common defense" against all enemies foreign and domestic. Military tribunals are designed to deal with foreign enemies and unlawful combatants.

No Perks

No, military courts do not have all the perks and niceties of civil courts, such as a jury of peers, unanimous vote for conviction beyond a reasonable doubt, $500-per-hour defense lawyers, bail, appeals, interminable pussy-footing and continuances. Military courts are all business: efficient, prompt, adequate defense, two-thirds vote to convict on preponderance of evidence, no appeal and prompt execution of sentence.

The terrorists came to kill us and our loved ones and to destroy our sovereignty and freedoms – without warning, without mercy, without conscience, without souls and without constitutional rights. Our justice system is not demanding summary executions, as allowed under the Geneva convention, but swift justice – and that's what military tribunals are for.

Unlawful Combatants

Non-citizens, unlawful combatants, do not have the rights of U.S. citizens under our Constitution. Assistant Attorney General Michael Chertoff cited the president's authority as commander in chief in time of war, or "state of war" as now exists, for ordering military courts. Former Attorneys General William Barr, Republican, and Griffin Bell, Democrat, agree.

But not the umbrageous Sen. Leahy, afraid we'd "send a terrible message to the world that we lacked confidence in the very institutions we're fighting for."

To the contrary, the "terrible message" would be not to fight with every weapon in our arsenal, and the military court is near the top in precedents and "in the unchanging principles of natural laws."

The Authority

In his order for military tribunals, the president cited Congress' resolution of Sept. 13 to make war on terrorists, and Sections 818, 821 and 836 of Title 10, U.S. Code.

Sec. 818 says, in effect, that general courts-martial can try any person who by the law of war is subject to trial by a military tribunal and "may adjudge any punishment permitted by the law of war."

Sec. 821 says, in effect, that the provisions conferring courts-martial jurisdiction do not deprive military tribunals of concurrent jurisdiction that by the law of war may be tried by military commissions or military tribunals.

Sec 836 gives the president exclusive authority to set procedures for such trials, including pretrial, trial and post-trial, and modes of proof for cases tried in military tribunals.

Precedents

George Washington, commander in chief of the Continental Army, used military tribunals instead of civil courts to try unlawful combatants regularly during the Revolutionary War. The most famous case was his signing the death warrant for the hanging of Maj. John Andre, the British officer who conspired with Benedict Arnold.

Washington was applying the "law of nations," later incorporated in the U.S. Constitution that he helped draft. Still later, Justice James Wilson of the first Supreme Court explained the "law of nations" as "part of the absolute moral law – the Laws of Nature mentioned in the Declaration of Independence – that governs relations between nations, and between nations and other external forces such as piracy and terrorism," quoting Terence P. Jeffery. (Human Events, Nov. 19, 2001)

'Law of Nations'

Washington's precedent, involving spies, unlawful combatants, the law of nations and the law of war, was reinforced in 1806 by President Thomas Jefferson, by Abraham Lincoln in the Civil War, by President Franklin D. Roosevelt in World War II and, now, by President George W. Bush in the Terrorist War.

Roosevelt did not hesitate. America was in dire straits after Pearl Harbor. His executive order in 1942 ordered that anyone "committing hostile acts on behalf of America's enemies shall be subject to the law of war and to the jurisdiction of military tribunals."

The Supreme Court agreed unanimously in Ex Parte Quirin (1942) and the Congress followed with the "Articles of War," incorporated in Title 10 of the U.S. Code, establishing military tribunals without juries in time of war.

Jolt to Reality

So, what is the problem with the bleeding hearts – the Leahys, the Dershowitzes and the Cochranes? The lawyers dream first of fat fees. The liberal senator and his colleagues want Utopia, the perfect world – or, perhaps just to bash Bush.

The warning of Orrin Hatch, R-Utah, of the Senate Judiciary Committee should have a tendency to jolt the naysayers to reality:

To those who reflexively oppose the military tribunals, I ask: Do we really want to litigate in a criminal trial whether soldiers who apprehended bin Laden should have obtained a search warrant before entering his cave, or whether he understood his Miranda rights?

Capt. Evans is a columnist and the author of five books, including "Death Knell of the Panama Canal," a study of the Chinese takeover of the canal. Click here to read Capt. Evans' biography.

Capt. Evans' columns are distributed by the Americanism Educational League of Buena Park, Calif. He lives in Norfolk, Va.

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