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Jewish World Review Dec. 10, 2001 / 25 Kislev, 5762

Nat Hentoff

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The message we send to the world -- SPAIN has in custody eight men charged with involvement in the Sept. 11 terrorist attacks that led to our president's executive order establishing military tribunals to deal with suspects who are not American citizens.

But Spain will not extradite those suspects to the United States unless this country agrees that they will not be tried by one of the president's controversial military tribunals. And, it is clear, as The New York Times reported on Nov. 24, that it's doubtful any of the 15 countries that have signed the European Convention on Human Rights will extradite any terrorist suspects they find.

It is not only that these nations have abolished the death penalty -- which our military tribunals have the power to impose -- but also because the Bush procedures for these military trials do not meet European standards of justice in court proceedings.

The closed trials in the Bush executive order and the inability of defendants to choose their own lawyers violate the fair-trial standards set in Article 6 of the European Convention on Human Rights. Moreover, Geoffrey Robertson, a British human-rights attorney told The New York Times: "Military officers in the pay of the U.S. government are not regarded as independent or impartial."

And in the Nov. 19 issue of Legal Times -- a Washington-based weekly to which I contribute articles on the law -- Charles Gittins, a former Marine judge advocate and a respected military defense lawyer, says:

"My concern about the executive order is that it basically leaves it up to the accuser whether suspects will get due process, and then it strips away any opportunity to challenge the proceeding in federal court."

Another message to the world we are sending is that this new version of America's vaunted rule of law forbids those found guilty by our military tribunals from appealing to any American court, including the Supreme Court. The only appeals can go to George W. Bush, who initially selects those to be tried, and the Secretary of Defense.

None of these concerns troubles the president's defenders in the press and in the professoriate. The strongest precedent they cite for his executive order is the 1942 Supreme Court decision, Ex Parte Quirin, in which the Court, by an 8-0 vote, affirmed the constitutionality of the military commission established by President Franklin Roosevelt to try eight German saboteurs captured in this country. Also upheld was the execution of six of those saboteurs.

That Supreme Court did, however, rule -- by contrast with Bush's executive order -- that the defendants had a right to judicial review, but it denied them the right to petition for habeas corpus.

New light has been shed on this precedent -- so heartily invoked in the president's comments -- by Tony Mauro, a valuable historian of the Supreme Court, in the Nov. 19 Legal Times.

When the German's defense lawyer, Colonel Kenneth Royal, said he would challenge the constitutionality of this process, Attorney General Francis Biddle told Justice Owen Roberts, who then told his brethren, that he was concerned "Roosevelt would execute the Germans no matter what the Court did."

Said Chief Justice Harlan Fisk Stone: "That would be a dreadful thing!" Our message to the world then would have been that the American president was above the law -- way above the law. George W. Bush is getting close to that.

It is no wonder that John Frank, a clerk to Justice Hugo Black at the time -- and a Supreme Court scholar to whose work I've often been indebted -- said of the decision in the Quirin case, "The Court allowed itself to be stampeded." Not only was the Court stampeded; it was threatened.

Mauro quotes another Justice on the case, Felix Frankfurter, who said of the Quirin decision in 1953: "Not a happy precedent." I await members of the Washington press corps asking the president or his press secretary about this tainted precedent flourished by the administration.

Another point illuminated by Mauro is that Roosevelt's order closed our civilian courts to saboteurs and spies who entered this country on behalf of "any nation at war with the United States." But Bush's order "appears to apply to any noncitizen with alleged terrorist connections, no matter what the country of origin." And that could also include legal resident aliens here. Nor has there been a declaration of war by Congress. And we are teaching democracy to the world?

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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