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Military Tribunals: Another Step Away from Our Principles


President Bush’s plan to form military tribunals to punish suspected terrorists is one more step away from the civilized principles of constitutional government and the rule of law that have long distinguished the United States from other nations in history.

The president’s tribunals would apply to two classes of accused terrorists: those captured as part of the war in Afghanistan and those arrested in or brought to the United States. The judge and jury (which will be the same people) will consist of officials appointed by the secretary of defense, trials will be secret, and conviction will be on a 2/3 vote. Punishment, including death, will be swift because the president’s edict denies any person convicted of terrorism the right to appeal his conviction to the appellate courts, including even a claim that the evidence presented was insufficient to support the conviction.

The president’s edict also delegates to himself the power of determining who gets sent to a tribunal as a terrorist. Therefore, not only has the president exercised the power to send the nation into war without a congressional declaration of war, he now also will be vested with the power to decide life and death for suspected terrorists. Is that what our Founding Fathers envisioned when they brought the federal government into existence with the Constitution? Wasn’t the purpose of such constitutional provisions as the congressional declaration-of-war requirement and the division of powers between the respective branches of government precisely to avoid the concentration of that type of omnipotent power?

The only good thing about the president’s edict, which he intends to implement without congressional approval, is that it doesn’t apply to U.S. citizens. Nevertheless, it is in the interest of every American to oppose the president’s plan ardently and vigorously. As Sir Thomas More observed several centuries ago, once all the trees are felled, one after another, what barriers will be left to protect you from the north wind?

Over the centuries, international rules of warfare have developed with which civilized nations are expected to comply. These include prohibitions against targeting civilians, raping women, and torturing and killing prisoners of war. While there have been breaches committed by combatants in every war, our nation has always remained firmly committed to upholding those principles.

Like it or not, a civilized nation engaged in war must release its prisoners of war when the war is over. To do otherwise — or to execute prisoners after conviction of terrorism by a Soviet-style kangaroo court — would only plunge our nation to the level of barbarians.

What about prisoners of war who are accused of committing ordinary crimes (such as conspiracy to commit murder on September 11)? Must they be released? Of course not. They can be transported to the United States for trial, where they will be accorded the long-established principles of due process of law that are guaranteed by the Fourth, Fifth, and Sixth amendments to our Constitution, principles that stretch all the way back to Magna Carta.

What about prisoners accused of war crimes (including the September 11 attacks, if they are treated as acts of war)? Must they be released? Of course not. They can be tried before an international court consisting of an independent judge and jury whose goal is to seek truth and justice, not provide a cover for legalized murder.

At the end of World War II, there were undoubtedly Americans who resented watching U.S. officials release ordinary German and Japanese prisoners of war for return to their homeland. But the fact that they were released, rather than executed, is a tribute to the U.S. government and the American people. Keep in mind that the Soviet communists either killed or sent their prisoners to the gulags, where many of them died. (Santa Anna’s execution of James Fannin and his men after they had surrendered at Goliad during the Texas revolution also comes to mind.)

When Timothy McVeigh was arrested, there were undoubtedly those who would have loved to have seen him executed immediately. The fact that McVeigh was accorded all the attributes of due process of law before being punished is one of our nation’s distinguishing characteristics, one in which every American should take pride.

During the Great Depression, President Roosevelt announced a plan to pack the Supreme Court with additional members to ensure that the Court could no longer declare his New Deal “emergency” reforms unconstitutional. Despite Roosevelt’s popularity, the American people rose up and defended their nation’s principles and their Constitution from their president’s assault, and FDR’s court-packing scheme failed. That experience provides a model for how the American people should respond to President Bush’s military tribunals.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.