Tribunals on Trial
Fragile Freedoms / Part 2 of 3
On a foggy predawn morning in June 1942, a German U-boat surfaced just off the beach at Amagansett, Long Island.
Four young men armed with explosives, timers, detonators, and thousands in 50-dollar bills were ferried on a rubber raft through the churning surf. They buried the explosives and their uniforms in the dunes before catching the 6:57 train to New York City.
Four days later, a second U-boat delivered four others with more explosives to a beach near Jacksonville, Fla.
They were all members of a team of saboteurs trained in Nazi Germany and sent to the United States to blow up manufacturing plants, railroads, and canals.
Now, almost 60 years later, the story of the German saboteurs and their trial by military tribunal is at the heart of President Bush's plan to bring Osama bin Laden and his Al Qaeda operatives to justice. Just as during World War II, the nation is debating the extent to which a president may justifiably scale back civil liberties in times of war or national emergency.
United States is a country ruled by laws rather than by men, the president has a sacred duty not to violate core principles guaranteed in the US Constitution and the Bill of Rights.
But the president also has a sacred duty as commander in chief to provide for the national defense.
Mr. Bush's proposal to prosecute suspected terrorists as war criminals will be a crucial and controversial test of these twin obligations.
At worst, critics say, justice by tribunal can make a mockery of US jurisprudence, limiting defendants' rights and allowing convictions by less than unanimous vote.
To supporters, however, military tribunals can provide even-handed justice in cases where traditional proceedings might exclude key evidence or reveal secrets about how terrorists were tracked down.
Historically, US courts have given wartime presidents some latitude on actions that may undermine civil liberties.
"In any civilized society the most important task is achieving a proper balance between freedom and order," writes US Supreme Court Chief Justice William Rehnquist in "All The Laws But One," his 1998 book on this issue. "In wartime, reason and history both suggest that this balance shifts to some degree in favor of order - in favor of the government's ability to deal with conditions that threaten the national well-being."
That shifting balance was evident on Nov. 13 when Bush, as commander in chief, issued a military order that any noncitizen whom he suspects might be involved with international terrorists can be tried in a US military-tribunal.
The idea wasn't Bush's. It came from Franklin Roosevelt, who used the military tribunal option in 1942 after the arrest of the eight German saboteurs.
Shortly after arriving in the US, the eight were quickly rounded up in New York and Chicago after two of their members apparently had second thoughts about the mission and turned in the entire group to the FBI.
It was a major boost to US national security at a critical time in the war effort. Violence was averted. No one was killed. Nothing was destroyed.
Nonetheless, President Roosevelt believed it necessary to send a strong message to the Nazi leadership in Berlin - the kind of message a ruthless enemy would understand. Rather than treating the captured men as prisoners of war or prosecuting them in a jury trial in federal court with full constitutional protections, the eight Germans were forced to stand trial as war criminals before a secret military tribunal hand-picked by the president himself. (It consisted of four major generals and three brigadier generals.)
The Germans were quickly and efficiently condemned to die in the electric chair - including those who cooperated with the FBI.
Had the Germans been tried in federal court for their aborted bombing conspiracy, they might have been sentenced to three years in prison at most, according to some analysts.
In addition, a federal jury might have taken a more lenient posture toward the Germans, considering at least three mitigating factors: They never set their bombing plot in motion, two of them revealed the entire scheme to the FBI, and they had spared the life of a young shore patrolman they encountered on the beach upon arriving on Long Island. Rather than shooting the young man to maintain the secrecy of their mission, the Germans offered him a $260 bribe and told him to forget he'd ever seen them. (The patrolman ran three miles to a Coast Guard Station and immediately reported the contact. But by then, the Germans had already left for New York City.)
The 1942 case is significant to the current war on terrorism because it established a legal precedent that allows Bush a broader range of possible venues for the trial of a suspected terrorist.
By sending the case to such a commission - rather than federal court, or even an international tribunal - the president maintains important control over the process that would not exist in other judicial forums.
Bush's Nov. 13 order essentially duplicates the military-tribunal structure established by Mr. Roosevelt. It provides for a conviction and death sentence on a mere two-thirds vote, no appeals to an independent court, and the same loose and ad hoc rules of evidence applied in 1942.
Now, a generation later, during a different kind of war, the Roosevelt option looks particularly attractive to Bush administration officials searching for a way to bring suspected foreign terrorists to justice without an O. J. Simpson-like media circus.
Among the advantages of tribunals:
In cases where the government may be forced to rely on skimpy evidence because of the murky nature of terrorist operations, a secret tribunal with handpicked judges may take a more forgiving approach toward the government's case than a jury of ordinary Americans in an open federal courtroom, under the full glare of an international spotlight.
The exclusionary rule - the canon of US legal procedure that bars the use of evidence obtained under questionable circumstances - does not necessarily apply in military tribunals, legal experts say. If a tribunal decided that certain information was of "probative value to a reasonable person" it could permit the introduction of any kind of evidence including, in theory, rumor, hearsay, and even statements obtained under torture.
A secret, or partially secret, tribunal may be in a stronger position than a federal judge to prevent the compromise of sensitive US intelligence sources and methods during a trial.
"We need to find some system of justice that allows us to punish guilty people without destroying our antiterrorism infrastructure around the world," says Robert Turner, a law professor at the University of Virginia.
He adds that tribunals need not be rigged against defendants. "The trial must be full and fair. We don't want victor's justice where you just run people through a process and run them out and hang them."
But civil libertarians warn that military tribunals are unnecessary and pose substantial risks to the rights of defendants. A long list of suspected terrorists have been convicted in federal court, and there is no need to change tactics now, they say.
The history of similar military tribunals following World War II is spotty, experts say. In some cases, military tribunals upheld the finest traditions of American justice. But in others, the results offer a frightening illustration of the dangers inherent in a judicial process that functions with a broad, largely unsupervised mandate.
The results of two tribunals conducted in the Philippines in 1945 and 1946 prompted Supreme Court Justice Frank Murphy to issue blistering criticisms at the time. The cases resulted in the execution of two top Japanese generals, Tomoyuki Yamashita and Masaharu Homma.
In the Homma case, the tribunal relied in part on evidence obtained from coerced confessions. "Either we conduct such a trial as this in the noble spirit and atmosphere of our Constitution, or we abandon all pretense to justice ... descend to the level of revengeful blood purges," Justice Murphy wrote.
In the Yamashita case, the tribunal convicted the general not because he personally committed, ordered, or condoned any atrocity, but because he failed to exert effective control over his fleeing troops to prevent their atrocities. "This indictment in effect permitted the military commission to make the crime whatever it willed," the justice wrote.
What is particularly telling about Justice Murphy's comments is that they came in the form of dissents to rulings in which the Supreme Court decided it lacked authority to review the quality of justice in military tribunals.
One major concern about the fairness of military tribunals is that, at present, there is no requirement that the same due-process rights guaranteed to American soldiers tried in military courts will be accorded to accused terrorists standing trial in military courts.
Although permitted in the 1940s, such disparate standards no longer comply with the requirements of international law and the Geneva Conventions, legal experts say. Failure to abide by those requirements could land US officials in hot water.
"Does participation in a trial which applies those World War II standards in itself constitute a war crime?" asks Evan Wallach, a military justice expert and judge on the US Court of International Trade, New York. "The answer is almost certainly yes."
This wasn't an issue in 1942, when the US Supreme Court upheld the jurisdiction of a military tribunal to hear the German saboteurs' case. The current version of the Geneva Convention wasn't adopted until seven years later in 1949.
Many experts in international law see the Bush move to use the 1942 precedent for military tribunals as a big step back.
"The actions of Sept. 11 aren't war crimes, they are civilian crimes, they are crimes against humanity," argues Leila Sadat, a law professor at Washington University in St. Louis. As such, she says, they should be tried by a Nuremberg-style international commission.
Other experts see substantial advantages to the military tribunal approach outlined by Bush. "The no-hearsay rule [of US federal courts] is generally a good idea," Mr. Turner says. "But in a setting where you are dealing with international terrorists who operate in small cells, you are not going to have a large number of witnesses who can say 'Yes, I saw him with those explosives.' "
That wasn't a problem with the German saboteurs, where the case was nearly air-tight. In August 1942, within two weeks of the US Supreme Court's 8-0 decision upholding the tribunal process, six of the Germans were put to death. President Roosevelt set aside the death sentences of the two Germans who cooperated with the FBI. One got life in prison, the other a 30-year sentence. Six years later, in 1948, President Harry Truman commuted the sentences and both men were deported to Germany. Their six colleagues are buried in unmarked graves in Washington.