Tribunals on Trial

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.)

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