By Jena Ardell
By Jon Campbell
By Alan Scherstuhl
By Tessa Stuart
By Roy Edroso
By Jon Campbell
By Albert Samaha
By Zachary D. Roberts
Editor's Note: Nat Hentoff's article "Abandoning the Constitution to Military Tribunals," which appeared in last week's issue, prompted hundreds of letters to the editor. A few of the letters and a reply by Hentoff follow.
Nat Hentoff's article was a clear, persuasive, and balanced exposition. Please sustain your vigorous, clarion voice in confrontation of this arrogant assault on the civil rights of everyone. We can't afford to win this military battle only to lose the much larger war for individual freedom.
Nat Hentoff's bias against George W. Bush aside, he makes very valid points. The authority to try saboteurs and spies in military courts is one reason we should have declared war. Instead, we're getting an ad hoc combination of legislation, executive orders, and directives and opinions from the AG. These threaten our liberties because they areprecedent-setting and are occurring during what is legally peacetimebut is a de facto war.
Nat Hentoff misstates the ways military courts work. He writes that there is no jury in a military court. This is false. There is a board of officers, whose function is exactly that of a jury. In all respects, the makeup of a military court mirrors a civilian court with a jury, prosecuting and defense lawyers, and a judge. Additionally, Hentoff writes that there is no appeal process in a military court. That would come as a surprise to the members of the U.S. Court of Military Appeals.
Nat Hentoff's article on military tribunals was interesting, but so wrong in faulting such tribunals for lacking the very important "exclusionary rule." The rule was developed through court decisions to protect criminal defendants from corrupt police practices. However, it has no relevance to these cases because it won't be the police who will be taking these thugs into custody. After all, we can't expect the Green Berets to read Bin Laden his Miranda rights. This is war!
No particular nation is the source of thepresent terrorism; hence Nat Hentoff's analogy to past uses of military tribunals is false. Also, I note that Mr. Hentoff offered no quote from the pro-military tribunal side, which causes me to question the "objective" nature of his article. Finally, perhaps a comprehensive look at the failure of the watchdog media until September 11 to dutifully bark, howl, and growl at the imminent threat of terrorism might be damning, or it might be vindicating, right? Can you say Gary Condit?
In Nat Hentoff's article, he writes: "In response [to supporters of the president's order establishing military tribunals], Georgetown University law professor David Cole emphasized on Nightline: 'The only times that military tribunals have been permitted in the past have been in a declared war with respect to enemy alienspeople who are involved in fighting against us in a declared war on behalf of a nation with which we're at war.' "
Mr. Cole is in error. The United States never declared war against the Confederate States, although the Confederate States Congress did declare war against the United States after Union troops invaded the Confederacy.
Lincoln's justification for military tribunals was based on the idea that the government was dealing with insurrectionists who were in rebellion against the lawful authority of the U.S. government. Nevertheless, the Lincoln example is a very scary precedent because even Northern copperheads were tried by military tribunals instead of civilian courts for what was perceived to be seditious activity.
Nat Hentoff replies: The Supreme Court, after the Civil War, ruled that Lincoln had no constitutional basis for the military tribunals (Milligan, ex parte, 1866). The "exclusionary rule" prohibits unconstitutionally obtained evidence from being used at trial, including searches by federal agents. Bush's executive order establishing these military tribunals prohibitsany juries and any appeals to U.S. courts, including the Supreme Court. The only appeals are to him and the secretary of defense. Because no particular nation is the source of this terrorism, it is all the more important to have public trialsnot secret trials, as in Bush's orderso that we will know who our enemies are. The press was indeed asleep in not focusing on the failures of our intelligence agencies under Clinton and Bush.
MIDDLE EAST REPORT
Having just returned from Lebanon, I read with interest Jason Vest's excellent and well-written article "Saddam in the Crosshairs" [November 27], which should raise alarm and stir debate. But there was one factual error. Hezbollah is not a Palestinian but rather a Lebanese political party. Its members are largely Shiite Lebanese, though a few Palestinian refugees support the Hezbollah and a small number participated in resistance activities in south Lebanon during the Israeli occupation. Hope to read more from Mr. Vest about life in the "asylum" at the Pentagon. Dangerous people are obviously back in powerand all unelected, to boot!
The writer is the former editor of the Washington, D.C., journalMiddle East Report.
Much thanks for "Black and Brown Leave Green" by Thulani Davis [November 20]. It takes both courage and insight to tell the truth about why Mark Green lost the confidence of New York's voters of color and thereby lost the recent mayoral election.