Undue Process?

Secretary of Defense Donald Rumsfeld acknowledged the other day that U.S. forces may never locate Osama bin Laden. Just in case, though, the Bush administration is pondering what to do if he or other leaders of Al Qaeda are captured.

One possibility receiving serious consideration is a trial before a specially appointed military tribunal. Such a panel could conduct proceedings in secret, limit defense witnesses, and admit evidence that would not be allowed in an ordinary criminal court. The right to appeal its decisions would be severely restricted.

Some advocates of this approach argue that the crimes committed by bin Laden and his henchmen are so horrible that they should not enjoy the due process rights guaranteed by the Constitution. Syndicated columnist Michelle Malkin writes that the Constitution "was meant to protect liberty-loving Americans–not evil terrorists."

One might as well say that accused child molesters, rapists, and serial murderers don't deserve constitutional safeguards because the charges against them are so serious. The whole point of a trial would be to establish, publicly and with convincing evidence, whether the defendants were, in fact, guilty of terrorism.

If we are so sure of ourselves that such legal niceties are unnecessary, summary execution would be a more honest approach than going through the motions of a trial rigged in the government's favor. But if President Bush was serious when he talked about bringing the perpetrators of the September 11 attacks "to justice," it's vital that the process exemplify America's commitment to the rule of law.

Douglas Kmiec, dean of Catholic University's law school, argues that bin Laden and his henchmen are war criminals. He cites "a long history in our nation" of bringing belligerents who violate "the law of war" before military tribunals where procedures are streamlined and the prosecution's burden is lightened.

But the concept of "unlawful belligerents" makes sense only in the context of war. It refers to enemies, such as spies and saboteurs, who do not qualify as prisoners of war because they've broken internationally recognized rules of combat.

In a "war on terrorism," I suppose, everything the enemy does breaks the rules by definition. But although American forces are dropping bombs in Afghanistan, we are not officially at war. Since Al Qaeda is not a state and the U.S. does not recognize the Taliban as a government, it's hard to see how we could be. And even if we were, that would not settle the issue of what to do with captured terrorists.

In a landmark 1866 case, the Supreme Court held that the constitutional rights of Lamdin P. Milligan, an Indiana man charged with aiding the Confederacy, had been violated when he was tried by a military tribunal instead of a civil court. Such shortcuts are not permitted, the justices declared, "where the courts are open, and in the proper and unobstructed exercise of their jurisdiction."

Milligan, living in a state threatened by invasion, was accused of secretly assisting the enemy in a war on U.S. soil that imperiled the Union's very existence. The vindication of his rights in these circumstances speaks volumes about the Court's wariness of arbitrary power.

By 1942, when the Supreme Court unanimously ruled that German saboteurs captured in the United States could be tried by a military commission, that wariness had faded. The Court argued that the1866 decision was not relevant because Milligan, unlike the Germans, did not qualify as a belligerent. Two years later, even though the war was over and any emergency presumably past, the Court upheld the fast and loose military trial of a Japanese general charged with failing to stop his troops from committing atrocities in the Philippines.

In light of these precedents, the current Supreme Court might very well uphold military tribunals for captured terrorists. But before we go down that road, perhaps we should ask whether the Court of 1866 understood something we have since forgotten.

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with its shield of protection all classes of men, at all times, and under all circumstances," it said. The Framers "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."