A 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.
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).