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Jewish World Review Dec. 3, 2001 / 18 Kislev, 5762

David Limbaugh

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Trying times -- WHEN I first heard that President Bush was contemplating an executive order to establish military tribunals to try terrorists I just knew that many liberals (and civil libertarians) would go bonkers.

They tell us that this is what constitutional rights are all about: ensuring that every scumbag is amply protected -- better that 10 guilty men go free than one innocent man be wrongly convicted. I know that sounds noble, and I know that sounding noble is the garden-variety liberal's greatest aspiration. But we might want to reconsider that cliche in light of the potential destruction 10 terrorists could do to millions of innocents.

Please don't convulse into spasms here because I, too, am a champion of civil rights, just not for terrorists. More than that, there is nothing in Bush's order that would deprive them of any constitutional rights to which they are entitled.

Some are suggesting that aliens are entitled to constitutional rights, including trial by jury; so to try terrorists without juries would be unconstitutional. It is true that resident aliens have some rights under our Constitution, though fewer than citizens. Even illegal aliens and foreigners have some constitutional protections.

All of this misses the point, though, because the United States Supreme Court has already spoken on this issue, and its decision did not turn on the citizenship status of the defendants.

During World War II, eight men were trained by the German Reich at a sabotage school near Berlin. In mid-June, 1942, they boarded two German submarines in pairs of four and were transported in the dead of night to our shores in New York and Florida. They immediately ditched their infantry uniforms, donned civilian dress and proceeded to various points in the United States carrying explosives, fuses, and incendiary and timing devices. They were on a mission from the German High Command to destroy war industries and facilities when the FBI apprehended them.

President Roosevelt, on July 2, 1942, appointed a Military Commission and directed it to try the defendants for offenses against the law of war and the Articles of War. Their trial commenced within days, and, while in process, the defendants brought a habeas corpus proceeding in federal court (ending up in the Supreme Court) challenging the validity, including the constitutionality, of the trial by military tribunal.

The Supreme Court rendered its decision on July 31, 1942, in Ex Parte Quirin, holding that military tribunals -- which had been part of our heritage since the Revolutionary War -- may be constituted to try enemies of war, including U.S. citizens, for capital crimes. In fact, one of the defendants (Haupt) was allegedly a citizen of the United States. The question was whether the defendants were unlawful combatants within the meaning of the Hague Convention. If so, they could be tried by military tribunal.

Unlawful combatants include those spies or enemy combatants who infiltrate their enemy's society in disguise (wearing civilian clothes) to wage war by destroying life or property. The defendants pleaded that Article III and the 5th and 6th Amendments to the Constitution entitled them to a civilian jury trial. The Court rejected their argument, saying that these constitutional provisions guaranteed the right to jury trial in all cases for which a jury had been guaranteed at common law, but did not enlarge the right to other cases. Since common law did not require a jury trial for trials by military commission or for offenses against the law of war, neither Article III nor the Amendments required it.

Bush's detractors are reduced to arguing form over substance, saying that military tribunals can only be established when there is a formal declaration of war. That is specious for at least three reasons: 1) Congress passed a joint resolution clearly authorizing the president to use his war powers as Commander-in-Chief to defeat the terrorists and their sovereign sponsors; 2) The terrorists have declared war against America in furtherance of which they've already committed repeated acts of war dating back to 1993 and continuing to the present; and 3) look at the Court's description of an unlawful combatant, and tell me with a straight face that al Qaeda and other terrorists don't fit it perfectly. No one of sound mind genuinely disputes that we are at war.

Some argue that to try terrorists before military tribunals would be "inconsistent with the cause of freedom." Nonsense. Assuming some terrorists survive and require a trial, the surest way to compromise our freedoms would be to place them in our laboriously slow civilian criminal justice system, removing any prospect of swift justice and deterrence.

Now is not the time to be proving that we are sweet, wonderful people, but that we are deadly serious about exacting justice from those who attacked us without provocation or justification.

David Limbaugh, a columnist and attorney a practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.