Assault on
Liberty
by
Alan M. Dershowitz
Military Justice Is to Justice as Military Music Is to
Music
November 21 - 27,
2001

(Illustration by Patrick Arrasmith)

long-term resident of the United States who President Bush
believes may have aided a terrorist can now be tried in secret by a
military commission and be sentenced to death on the basis of
hearsay and rumor with no appeal to any civilian court, even the
Supreme Court. This is the upshot of the "military order" issued by
Bush on November 13, 2001. And that is not all. Noncitizens
suspected of membership in Al Qaeda or of aiming "to cause injury to
or adverse effects on the United States" can be rounded up and
"detained at an appropriate location" for an indefinite time without
access to the courts.

This is the kind of "military justice" now in
effect for our alleged enemies both foreign and domestic. No wonder
so many experts on wartime tribunals believe that "military justice
is to justice as military music is to music." The role of the
military is to win wars, to protect citizens, and to follow the
orders of the commander in chief. Under our constitutional system of
civilian control over the military, it is not the role of military
subordinates to question and challenge determinations made by the
president, and in every case coming before a military commission
pursuant to this new order, the president will have already
"determined" that there is reason to believe that the suspect is a
terrorist. Command influence over these military tribunals will be
inevitable.

Nor will the suspect have any real opportunity to
defend himself, since the ordinary rules of evidence will not be
followed. The commission will be allowed to base its decision on any
evidence that would "have probative value to a reasonable person."
Translated from the legalese, this means that hearsay, coerced
confessions, and fruits of illegal searches can be considered, and
that cross-examinations will not always be allowed. It also means
that the prosecution need not even disclose the sources of its
hearsay if such disclosure would reveal a "state secret"—a broad
term nowhere defined.

The president's order
raises the prospect of mass detentions of noncitizens.

It's one thing to subject prisoners of war who are
captured on foreign battlefields to secret military tribunals.
Though secret military trials of Bin Laden and his foreign
associates may be unwise, they would be constitutional. It is quite
another thing to treat American residents, some with long ties to
this country, as if they had no rights under our constitution. There
are no Supreme Court precedents justifying secret military trials of
American residents who are not citizens and who are accused of
domestic crimes. Those nonresidents who tried to blow up the World
Trade Center back in 1993 were tried in a federal court and
convicted, after being accorded the full panoply of constitutional
rights. So were the Al Qaeda terrorists who blew up American
embassies in Africa. The independent jury in the latter case refused
to do the government's bidding on sentencing, declining to impose
the death sentence.

Assault on Liberty

Nat Hentoff Abandoning
the Constitution to Military Tribunals

Alan M. Dershowitz
Military Justice Is to Justice as Military Music
Is to Music

Norman Siegel No to
Military Tribunals: They Are Not Fair

Jeffrey Herman Powers of
Military
Tribunals

That is the proper function of a jury—to follow its
own lights on sentencing within the bounds of law. And it is
precisely this independence that President Bush wants to avoid by
placing "justice" against suspected terrorists within the chain of
military command. But in a post-Civil War case, the Supreme Court
ruled that as long as civilian courts remain open, civilians must be
tried in such courts, rather than in military tribunals. That case
involved an American citizen, but the Court suggested no distinction
between citizens and residents. In a World War II case, the Supreme
Court upheld a military tribunal's conviction and execution of Nazi
spies who had landed in the United States, but they were German
soldiers out of uniform, and a long tradition of military justice
makes such spies subject to military tribunals. This tradition does
not apply to long-term American residents suspected of aiding
terrorists.

In addition to the specter of kangaroo courts
trying suspected terrorists, the president's order raises the
prospect of mass detentions of noncitizens. Although the order
specifies that the detainees must be treated humanely, without any
"adverse distinction based on race," it is clear that the detainees
will be primarily Arab and Muslim. We are unlikely to experience a
repetition of the detention of more than 100,000 Japanese
Americans—citizens and noncitizens alike—which followed the attack
on Pearl Harbor. But it is certainly possible we will see mass
detentions of the sort that occurred in Hawaii between 1942 and
1945, when martial law was declared and most civil courts closed.
Many businesspeople in Hawaii favored martial law and were actually
disappointed when it ended following the Japanese surrender in 1945.
They liked the tough law-and-order approach taken by the military
and approved of the lower crime rates that accompanied military
justice. The fact that thousands of innocent people—mostly of Asian
background—were detained or falsely charged did not seem to be of
concern to these good citizens.

I was not surprised to read The Wall Street
Journal's editorial in favor of the Bush order. The Journal
editors don't much like our constitutional system of justice,
with its emphasis on procedural safeguards, exclusionary rules, and
the right to a vigorous defense. They see terrorism as a
justification—an excuse—for ridding us of "the excesses of the
modern U.S. criminal justice system," with its rigorous "standards
of evidence," its "exclusionary rule," and "the legal artifice of
Johnnie Cochran."

The real danger is that many Americans, not only
the editors of The Wall Street Journal, have always
distrusted our constitutional system of justice, with its historical
preference for the acquittal of the guilty over the conviction of
the innocent. They prefer a more streamlined system, with fewer
safeguards and fewer acquittals. They trust the government to bring
only the guilty to trial.

The war against terrorism—unlike previous wars—will
not end on a date specific. We may never declare victory. The
military approach to justice reflected in the Bush order may well
persist indefinitely, and perhaps even expand in its scope. Its
visible successes, undiscounted by its less visible failures, will
encourage many Americans to view the military approach to
trials—which favors efficiency and certainty over fairness and
resolution of doubts in favor of the accused—as the norm rather than
the exception. This must never be allowed to happen, if our
liberties are to be preserved. As the Supreme Court said, in ruling
that Abraham Lincoln had violated the Constitution by subjecting
Confederate sympathizers to military tribunals:

. . . [Our constitution] foresaw that troublous
times would arise, when rulers and people would become restive under
restraint and seek by sharp and decisive measures to accomplish ends
deemed just and proper; and that the principles of constitutional
liberty would be in peril, unless established by irrepealable law.
. . .

This nation . . . has no right to expect that it
always will have wise and humane rulers, sincerely attached to the
principles of the Constitution. Wicked men, ambitious of power, with
hatred of liberty and contempt of law, may fill the place once
occupied by Washington and Lincoln; and if this right [to
suspend provisions of the Constitution during the great exigencies
of government] is conceded, and the calamities of war again
befall us, the dangers to human liberty are frightful to
contemplate.

We must begin to contemplate these dangers
now, in the face of President Bush's tyrannical order.

Alan Dershowitz's latest book is Letters to a
Young Lawyer (Basic).

Read
more of the Voice's coverage of the
attack on civil liberties in post-September 11 America.

Letter
to the Editor   |   E-Mail
Story   |   Voice
Newsletter

Recent Assault on Liberty
columns

Powers
of Military Tribunals — Jeffrey Herman tells you
what the military powers can do.

No
to Military Tribunals: They Are Not Fair — The military
tribunals antithetical to our long-honored precepts of
fundamental fairness. Norman Siegel tells you why they
should be opposed by every member of our community.

Abandoning
the Constitution to Military Tribunals — President Bush
is abandoning more and more of the fundamental rights and
liberties that he assured us he was fighting to preserve.
Nat Hentoff reports.

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